Borello test in California

2025(See Borello, supra, 48 Cal.3d at p. 351 [“ ‘Generally, … the individual factors cannot be applied mechanically as separate tests; they are intertwined and their weight depends often on particular combinations.’ ”].) While the control-of-work element is the core of the test, and the right-to-discharge element is the most important secondary factor, the Borello test does not intrinsically require either to be resolved a certain way for an individual to be an independent contractor.

2025(See Borello, supra, 48 Cal.3d at p. 351 [“ ‘Generally, … the individual factors cannot be applied mechanically as separate tests; they are intertwined and their weight depends often on particular combinations.’ ”].) While the control-of-work element is the core of the test, and the right-to-discharge element is the most important secondary factor, the Borello test does not intrinsically require either to be resolved a certain way for an individual to be an independent contractor.

2022But in 2018, the Court decided Dynamex, in which it declined to apply the Borello test to wage-and-hour claims in light of the broad language employed by the Industrial Welfare Commission in defining “employment” for purposes of establishing wage and hour standards. ( Dynamex, supra, 4 Cal.5th at pp. 936-937, 943.) Instead, the court adopted the three-part “ABC” test, under which a worker is considered an employee “unless the hiring entity establishes (A) that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the c

2022But in 2018, the Court decided Dynamex, in which it declined to apply the Borello test to wage-and-hour claims in light of the broad language employed by the Industrial Welfare Commission in defining “employment” for purposes of establishing wage and hour standards. ( Dynamex, supra, 4 Cal.5th at pp. 936-937, 943.) Instead, the court adopted the three-part “ABC” test, under which a worker is considered an employee “unless the hiring entity establishes (A) that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the c

2021(Id. at pp. 956‒957.) At the same time, “Dynamex did not purport to replace the Borello standard in every instance where a worker must be classified as either an independent contractor or an employee for purposes of enforcing California's labor protections.” [Citation.] To the contrary, the Supreme Court recognized that different standards could apply to different statutory claims.” (Garcia v. Border Transportation Group, LLC (2018) 28 Cal.App.5th 558, 570 (Garcia).) For example, in Garcia, this court held that although Dynamex applied to the plaintiff’s wage order claims, Borello applied to n

2021(Id. at pp. 956‒957.) At the same time, “Dynamex did not purport to replace the Borello standard in every instance where a worker must be classified as either an independent contractor or an employee for purposes of enforcing California's labor protections.” [Citation.] To the contrary, the Supreme Court recognized that different standards could apply to different statutory claims.” (Garcia v. Border Transportation Group, LLC (2018) 28 Cal.App.5th 558, 570 (Garcia).) For example, in Garcia, this court held that although Dynamex applied to the plaintiff’s wage order claims, Borello applied to n

2023(Cf. California Trucking Assn. v. Su (9th Cir. 2018) 903 F.3d 953 , 959 fn. 4 [“Dynamex did not purport to replace the Borello standard in every instance where a worker must be classified as either an independent contractor or an employee for purposes of enforcing California’s labor protections.”].) Second, unlike the situation with equal protection law, there may be a large divergence between state and federal substantive due process doctrines.

2023(Cf. California Trucking Assn. v. Su (9th Cir. 2018) 903 F.3d 953 , 959 fn. 4 [“Dynamex did not purport to replace the Borello standard in every instance where a worker must be classified as either an independent contractor or an employee for purposes of enforcing California’s labor protections.”].) Second, unlike the situation with equal protection law, there may be a large divergence between state and federal substantive due process doctrines.

2021(See Vazquez II, supra, 986 F.3d at p. 1122 [remanding for the district court to consider whether the plaintiffs were employees under the Dynamex standard “[g]iven the fact-intensive nature of the Dynamex inquiry”].) We will therefore remand for that purpose and for further proceedings on Appellants’ claims. 6 Citing decisions from other jurisdictions, East Coast argues that one such defense may be based on a showing that Appellants’ work was outside the “usual course” of East Coast’s business because Appellants performed the work outside of East Coast’s place of business.

2021(See Vazquez II, supra, 986 F.3d at p. 1122 [remanding for the district court to consider whether the plaintiffs were employees under the Dynamex standard “[g]iven the fact-intensive nature of the Dynamex inquiry”].) We will therefore remand for that purpose and for further proceedings on Appellants’ claims. 6 Citing decisions from other jurisdictions, East Coast argues that one such defense may be based on a showing that Appellants’ work was outside the “usual course” of East Coast’s business because Appellants performed the work outside of East Coast’s place of business.

2024Under Borello, “‘“[t]he principal test of an employment relationship [was] whether the person to whom service is rendered ha[d] the right to control the manner and means of accomplishing the result desired.”’” (Ayala, supra, 59 Cal.4th at p. 531 .) Ayala clarified the application of the Borello test for Labor Code violations by identifying numerous “secondary indicia” for assessing whether a common law employer-employee relationship exists.

2024Under Borello, “‘“[t]he principal test of an employment relationship [was] whether the person to whom service is rendered ha[d] the right to control the manner and means of accomplishing the result desired.”’” (Ayala, supra, 59 Cal.4th at p. 531 .) Ayala clarified the application of the Borello test for Labor Code violations by identifying numerous “secondary indicia” for assessing whether a common law employer-employee relationship exists.

2018The trial court in Ayala had denied the plaintiffs' motion to certify the action as a class action on the ground that under the Borello test-which, at the trial level, both parties agreed was the applicable standard-common issues did not predominate because application of the Borello standard "would require 'heavily individualized inquiries' into Antelope Valley's control over the carriers' work." ( 59 Cal.4th at p. 529 , 173 Cal.Rptr.3d 332 , 327 P.3d 165 .) In reviewing the trial court's ruling in Ayala , this court noted that "[i]n deciding whether plaintiffs were employees or independent c

2018The trial court in Ayala had denied the plaintiffs' motion to certify the action as a class action on the ground that under the Borello test-which, at the trial level, both parties agreed was the applicable standard-common issues did not predominate because application of the Borello standard "would require 'heavily individualized inquiries' into Antelope Valley's control over the carriers' work." ( 59 Cal.4th at p. 529 , 173 Cal.Rptr.3d 332 , 327 P.3d 165 .) In reviewing the trial court's ruling in Ayala , this court noted that "[i]n deciding whether plaintiffs were employees or independent c

2021(See Estrada v. FedEx Ground Package System, Inc. (2007) 154 Cal.App.4th 1, 10 [“Because the Labor Code does not expressly define ‘employee’ for purposes of section 2802, the common law test of employment applies.”].) Borello governs the claim at issue here.

2021(See Estrada v. FedEx Ground Package System, Inc. (2007) 154 Cal.App.4th 1, 10 [“Because the Labor Code does not expressly define ‘employee’ for purposes of section 2802, the common law test of employment applies.”].) Borello governs the claim at issue here.

2022Searle & Co. (1984) 35 Cal.3d 691 , 701–702.) 11 If a party wants a tailored version of an instruction such as CACI No. 3704 to address a specific concern, that party must identify the problem before the jury is instructed, and then propose whatever clarifying or supplemental language he or she believes is necessary to address the problem. “‘Where, as here, “the court gives an instruction correct in law, but the party complains that it is too general, lacks clarity, or is incomplete, he must request the additional or qualifying instruction in order to have the error reviewed.”’” (Metcalf, supr

2022Searle & Co. (1984) 35 Cal.3d 691 , 701–702.) 11 If a party wants a tailored version of an instruction such as CACI No. 3704 to address a specific concern, that party must identify the problem before the jury is instructed, and then propose whatever clarifying or supplemental language he or she believes is necessary to address the problem. “‘Where, as here, “the court gives an instruction correct in law, but the party complains that it is too general, lacks clarity, or is incomplete, he must request the additional or qualifying instruction in order to have the error reviewed.”’” (Metcalf, supr

2021Application of section 4304-1 would not add to or alter our analysis. 28. supra, 162 Cal.App.4th at p. 854 [finding right to discharge at will, without cause, where 30 days’ notice was required]; see also Espejo, supra, 13 Cal.App.5th at pp. 346, 348 [finding that newspaper carriers were employees where contract was terminable on 30 days’ notice].) Additionally, the regulation provides that hourly pay shall evidence an employment relationship, whereas flat fee or per copy compensation shall evidence an independent contractor relationship.

2021Application of section 4304-1 would not add to or alter our analysis. 28. supra, 162 Cal.App.4th at p. 854 [finding right to discharge at will, without cause, where 30 days’ notice was required]; see also Espejo, supra, 13 Cal.App.5th at pp. 346, 348 [finding that newspaper carriers were employees where contract was terminable on 30 days’ notice].) Additionally, the regulation provides that hourly pay shall evidence an employment relationship, whereas flat fee or per copy compensation shall evidence an independent contractor relationship.

2021(See Dynamex, supra, 4 Cal.5th at pp. 914- 915, 919 [approving extension of Borello analysis beyond the workers’ compensation context; accord, Espejo, supra, 13 Cal.App.5th at p. 348 [relying on Poizner in a case involving Labor Code violations].) 35. person doing the work; (6) the length of time for which the services are to be performed; (7) the method of payment, whether by the time or by the job; (8) whether or not the work is a part of the regular business of the principal; (9) whether or not the parties believe they are creating an employer-employee relationship; (10) whether the classif

2021(See Dynamex, supra, 4 Cal.5th at pp. 914- 915, 919 [approving extension of Borello analysis beyond the workers’ compensation context; accord, Espejo, supra, 13 Cal.App.5th at p. 348 [relying on Poizner in a case involving Labor Code violations].) 35. person doing the work; (6) the length of time for which the services are to be performed; (7) the method of payment, whether by the time or by the job; (8) whether or not the work is a part of the regular business of the principal; (9) whether or not the parties believe they are creating an employer-employee relationship; (10) whether the classif

2018(See, e.g., Superior Care , supra , 840 F.2d at p. 1059 ; Lauritzen , supra , 835 F.2d at pp. 1534-1535.) Furthermore, like Borello , federal FLSA decisions applying the economic reality standard have held that no one factor is determinative and that the ultimate decision whether a worker is to be found to be an employee or independent contractor for purposes of the FLSA should be based on all the circumstances. ( Rutherford Food , supra , 331 U.S. at p. 730, 67 S.Ct. 1473 ; Scantland , supra , 721 F.3d at pp. 1312-1313 ; *40 Real v. Driscoll Strawberry Associates, Inc. (1979) 603 F.2d 748 , 7

2018(See, e.g., Superior Care , supra , 840 F.2d at p. 1059 ; Lauritzen , supra , 835 F.2d at pp. 1534-1535.) Furthermore, like Borello , federal FLSA decisions applying the economic reality standard have held that no one factor is determinative and that the ultimate decision whether a worker is to be found to be an employee or independent contractor for purposes of the FLSA should be based on all the circumstances. ( Rutherford Food , supra , 331 U.S. at p. 730, 67 S.Ct. 1473 ; Scantland , supra , 721 F.3d at pp. 1312-1313 ; *40 Real v. Driscoll Strawberry Associates, Inc. (1979) 603 F.2d 748 , 7

2014Appeals Bd., supra, 182 Cal.App.4th at p. 401 [“‘[T]he process of distinguishing employees from independent contractors is fact specific and qualitative rather than quantitative’”].) Here, as evidenced by the statement of decision, the trial court expressly considered the evidence, weighed credibility, and applied the Borello factors, in finding Arreola provided services as an independent contractor.

2014Appeals Bd., supra, 182 Cal.App.4th at p. 401 [“‘[T]he process of distinguishing employees from independent contractors is fact specific and qualitative rather than quantitative’”].) Here, as evidenced by the statement of decision, the trial court expressly considered the evidence, weighed credibility, and applied the Borello factors, in finding Arreola provided services as an independent contractor.

2013(Varisco v. Gateway Science & Engineering, Inc. (2008) 166 Cal.App.4th 1099, 1102-1104 [applying Borello test to claim of “tortious termination of employment contract in violation of public policy”]; Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 898-900 [wrongful termination in violation of public policy claim requires employer-employee relationship].) The only cause of action asserted by Shin that is not strictly subject to the common law standard for deciding whether a party is an independent contractor or an employee is his claim for failure to pay minimum wages and

2013(Varisco v. Gateway Science & Engineering, Inc. (2008) 166 Cal.App.4th 1099, 1102-1104 [applying Borello test to claim of “tortious termination of employment contract in violation of public policy”]; Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 898-900 [wrongful termination in violation of public policy claim requires employer-employee relationship].) The only cause of action asserted by Shin that is not strictly subject to the common law standard for deciding whether a party is an independent contractor or an employee is his claim for failure to pay minimum wages and