Description
Castle Publications is pleased to announce the third edition of California’s Employee vs. Independent Contractor Rules Under Dynamex AB 5 and AB 2257 by Attorney Richard J. Simmons of Sheppard, Mullin, Richter & Hampton LLP. This new manual provides a detailed examination of Dynamex, AB 5, AB 2257, misclassification cases, and the interrelationship of state and federal law and joint employment issues. The massive legislative changes and exceptions to the ABC test enacted in 2020 are featured in the publication.
Among the numerous subjects covered are the following:
- Analysis of post-Dynamex legislative reforms in AB 5 and AB 2257 and their structure
- The New Business-to-Business Rules
- California’s ABC Test
- The Role of the Supreme Court’s Decision in Dynamex
- The Default Standards Created by the New Law
- The Presumption That Workers Are Employees
- The New Legislated Exemptions and Carve-Outs From the ABC Test
- The Borello Decision and Common Law Standards
- Joint Employment Issues
- The Legislative Findings
- The IRS and EDD Guidelines
- Case Law Analysis
- Enforcement Actions
- Workers’ Compensation Provisions
- Prohibitions Against Reclassification of Employees
- Recent Court Decisions
- Willful Misclassifications
Table Of Contents
SECTION 1 INTRODUCTION
1.1 The Fundamental Legal Question
1.2 Misclassification Cases
1.3 The Consequences Of A Worker’s Status
1.4 The Two Law-Altering Events
1.5 Impact On Federal Law
1.6 The New ABC Test Adopted By The Dynamex Decision
1.7 The Legislative Response To Dynamex In AB 5 And AB 2257
1.8 Statutory Exceptions From The Generally Applicable Standards
1.9 The Dichotomy Between Occupations Examined Under The Dynamex And Borello Tests
1.10 Commercial Fishermen And Manicurists
1.11 Unemployment Insurance
1.12 Some Of AB 5’s And AB 2257’s Provisions Are Retroactive
1.13 The Expansion Of The Definition Of Crime
1.14 Joint Employer Issues
SECTION 2 AB 5’S AND AB 2257’S STRUCTURE AND LEGISLATIVE FINDINGS
2.1 The Scope Of AB 5 And AB 2257
2.2 The Legislature’s Findings Regarding AB 5
SECTION 3 THE CODIFICATION OF THE ABC TEST AND STATUTORY EXEMPTIONS
3.1 The Codification Of The ABC Test In Labor Code Section 2775
3.2 Express Statutory Exceptions From And Extensions Of Employer Status
3.3 Judicial Determinations Regarding The Inapplicability Of The Three-Part Test
3.4 Summary Of Occupations Excluded From Dynamex’s ABC Test
3.5 Business-To-Business Contracting Relationships
3.6 Referral Agencies
3.7 Professional Services Contracts
3.8 Performers Of A Performing Arts Company
3.9 Appraisers And Foresters
3.10 Additional Exceptions From Dynamex Standards For Specified Professional Services Governed By The Business And Professions Code
3.11 Contract Work For Single Engagement Events
3.12 Occupations Related To Sound Recordings Or Musical Compositions
3.13 Construction Industry Contracts
3.14 Individuals Providing Feedback To Data Aggregators
3.15 Exceptions For Other Specified Occupations
3.16 Motor Club Relationships
SECTION 4 THE PROVISIONS IN SECTION 2775 DO NOT CONSTITUTE A CHANGE IN THE LAW
SECTION 5 ENFORCEMENT ACTIONS AND INJUNCTIVE RELIEF
SECTION 6 WORKERS’ COMPENSATION PROVISIONS
SECTION 7 UNEMPLOYMENT INSURANCE CODE AMENDMENTS
7.1 Unemployment Insurance Code Section 606.5
7.2 Temporary Service Employers And Leasing Employers
7.3 Loaned Employees
7.4 Additional Amendments To Unemployment Insurance Code
SECTION 8 PROHIBITIONS AGAINST RECLASSIFICATION OF EMPLOYEES
SECTION 9 THE 1989 DECISION IN S.G. BORELLO & SONS, INC.
9.1 The Dichotomy Between Relationships Subject To Dynamex and Borello
9.2 Borello’s Multi-Factor Test
9.3 DLSE’s Interpretation Of Borello Test
9.4 Interpretation Of Borello In Senate History Of AB 5
SECTION 10 WILLFUL MISCLASSIFICATIONS
APPENDIX A AB 5: WORKER STATUS: EMPLOYEES AND INDEPENDENT CONTRACTORS (2019)
APPENDIX B AB 5 – CONCURRENCE IN SENATE AMENDMENTS
APPENDIX C LETTER OF AB 5’S AUTHOR TO CHIEF CLERK OF THE ASSEMBLY (SEPTEMBER 13, 2019)
APPENDIX D AB 2257 WORKER STATUS: EMPLOYEES (2020)
APPENDIX E DYNAMEX OPERATIONS WEST, INC. V. SUPERIOR COURT
APPENDIX F S.G. BORELLO & SONS, INC. V. DEPT. OF INDUSTRIAL RELATIONS
APPENDIX G LETTER OF SPECIAL COUNSEL TO THE LABOR COMMISSIONER RE: “APPLICATION OF THE “ABC” TEST TO CLAIMS ARISING UNDER WAGE ORDER (May 3, 2019)”
APPENDIX H IRS QUESTIONNAIRE (IRS SS-8)
APPENDIX I EDD QUESTIONNAIRE (EDD Form DE 1870)
APPENDIX J EMPLOYMENT STATUS PORTAL: LABOR & WORKFORCE DEVELOPMENT AGENCY FREQUENTLY ASKED QUESTIONS ON EMPLOYMENT STATUS
CASE TABLE
SUBJECT INDEX
About The Author
Richard J. Simmons is a Partner in the law firm of Sheppard, Mullin, Richter & Hampton LLP in Los Angeles. He represents employers in various employment law matters involving litigation throughout the country and general advice regarding state and federal wage and hour laws, employment discrimination, wrongful discharge, employee discipline and termination, employee benefits, affirmative action, union representation proceedings, and arbitrations. Mr. Simmons received his B.A., summa cum laude, from the University of Massachusetts, where he was a Commonwealth Scholar and graduated in the Phi Kappa Phi Honor Society. He received his J.D. from Berkeley Law at the University of California at Berkeley where he was the Editor-in-Chief of the Industrial Relations Law Journal, now the Berkeley Journal of Employment and Labor Law.
Mr. Simmons argued the only case before the California Supreme Court that produced a victory for employers and business in 2018. He was recently recognized as the Labor and Employment Attorney of the Year by the Los Angeles Business Journal and was inducted into the Employment Lawyers Hall of Fame. He has lectured nationally on wage and hour, employment discrimination, wrongful termination, and other employment and labor relations matters. He is a member of the National Advisory Board to the Berkeley Journal of Employment and Labor Law, published by Berkeley Law at the University of California at Berkeley. He was also appointed by the California Industrial Welfare Commission as a member of three Minimum Wage Boards for the State of California.
