Workers and Independent Contractors Assembly Bill 5 (AB 5) in California

Therefore, the liability of LPL in both the Quinn Action and the present action hinges on whether the plaintiffs in both actions are classified as employees or independent contractors.

SDCERA moves for summary judgment on the ground that the County properly classified plaintiff as an independent contractor and subsequently as a temporary expert professional ("TEP") during the applicable period. ROA # 110.

Therefore, the liability of LPL in both the Quinn Action and the present action hinges on whether the plaintiffs in both actions are classified as employees or independent contractors.

Plaintiff alleges that he and other Solar Representatives were misclassified as exempt employees “and/or independent contractors,” and further asserts that he and other Solar Representatives were designated as direct sellers and were effectively treated as independent contractors. The Court does not find the references to “independent contractor” in the FAC are “irrelevant, false, or improper matter” subject to a motion to strike. (CCP §436(a).)

Third, it remains to be determined by the trier of fact as to whether Plaintiff was improperly classified as an independent contractor. Fourth, Plaintiffs have failed to meet their burden of establishing both procedural and substantive unconscionability. Plaintiffs fail to cite to any specific provisions in the arbitration agreement that are substantively unconscionable. The action is stayed pending arbitration as to causes of action 1-10. The arbitration shall be completed by July 9, 2021.

or independent contractor question”].)

She argues that “Defendant’s employment of Plaintiff cannot serve as consideration for the arbitration agreement where Plaintiff was classified as an independent contractor, was never classified as an employee, nor promised employment. Since no employment or continued employment was ever offered or existed, there is no consideration, rendering the contract illusory.” (Opp. p. 5:17-23.)

Defendants identify as a purportedly “undisputed” fact that Plaintiff was their employee. But, the only purported evidence they cite for this proposition is the Plaintiff’s own Complaint. The Complaint makes no such admission that Plaintiff was an employee, as opposed to an independent contractor. Rather, the Complaint simply alleges that “defendants contracted with plaintiff for repairs on their home.” Complaint ¶¶ GN-1, Prem.L-1.

to it as an employee.

The Law The main issue before the Court is whether P is an employee or independent contractor. This Court had previously indicated that it was inclined to find the Halbert was an independent contractor. However, after having re-read the relevant cases, and in light of our Supreme Court’s recent detailed analysis in Dynamex v. Superior Court (2018) 4 Cal.5th 903, this Court has changed its tentative decision and concludes that Plaintiff Halbert must be classified as an employee of Defendant PRN.

Labor Code Sec. 226(a) due to his failure to provide an employee with a detachable itemized wage statement containing the required information. The violations concern a single employee, Miguel Carillo Medina ("Medina"). Huynh maintained that he was not required to provide wage statements because Medina was an independent contractor, not an employee. As Huynh notes, in assessing Medina's status (employee vs. independent contractor), and after noting the factors set forth in Borello & Sons v.

“independent contractors” is necessary. Whether a particular worker is classified as an “employee” or an “independent contractor” can have important consequences in numerous different areas of the law.

SROG Nos. 51-52 SROG Nos. 51-52 ask Defendant to identify every aggrieved employee who Defendant classified as an employee (SROG No. 51) or independent contractor (SROG No. 52) during the last two years. Plaintiff defined aggrieved employee as all persons providing services for [Defendant] on a regular basis at your facilities located in the state of California, between August 5, 2018 and the Present.

Labor Code section 2699, subdivision c, explains that an “‘aggrieved employee’ means any person who was employed by the alleged violator and against whom one or more of the alleged violations was committed.’” As explained above, there are triable issues of material fact as to whether Plaintiff should be classified as an employee or as an independent contractor.

Department of Industrial Relations (1989) 48 Cal.3d 341, 349 ( Borello ) to determine whether a worker is an employee or independent contractor. Under this test, “[t]he most significant factor in determining whether the status of a person performing services for another is an employee or an independent contractor is the right to control the manner and means of accomplishing the result, that is, the details of the work.” ( Toyota Motor Sales U.S.A., Inc. v.

Department of Industrial Relations (1989) 48 Cal.3d 341, 349 ( Borello ) to determine whether a worker is an employee or independent contractor. Under this test, “[t]he most significant factor in determining whether the status of a person performing services for another is an employee or an independent contractor is the right to control the manner and means of accomplishing the result, that is, the details of the work.” ( Toyota Motor Sales U.S.A., Inc. v.

Department of Industrial Relations (1989) 48 Cal.3d 341, 349 ( Borello ) to determine whether a worker is an employee or independent contractor. Under this test, “[t]he most significant factor in determining whether the status of a person performing services for another is an employee or an independent contractor is the right to control the manner and means of accomplishing the result, that is, the details of the work.” ( Toyota Motor Sales U.S.A., Inc. v.

Department of Industrial Relations (1989) 48 Cal.3d 341, 349 ( Borello ) to determine whether a worker is an employee or independent contractor. Under this test, “[t]he most significant factor in determining whether the status of a person performing services for another is an employee or an independent contractor is the right to control the manner and means of accomplishing the result, that is, the details of the work.” ( Toyota Motor Sales U.S.A., Inc. v.

Application Plaintiff's complaint is dependent upon her contention that Regents classified her as an independent contractor, when in fact she should have been classified as an employee. Her single PAGA cause of action is based upon alleged violations of Labor Code sections 226.8, 2802, 3700, and 204(a). Section 226.8(a)(1) makes it unlawful for any person or employer to willfully misclassify an individual as an independent contractor.

The SAC fails to allege who specifically told Plaintiff that he would be hired and managed as an independent contractor rather than an employee or what authority that individual had to speak on behalf of Defendant. Moreover, Plaintiff failed to plead the element of reliance: that because he relied on the representation that he would be managed as an independent contractor, he would have still performed the same work as an employee and would have performed labor for the defendant. (SAC ¶ 79.)

Even though the agreement between Batista and AMS is labeled “independent contractor”, an "agreement characterizing the relationship as one of ‘client- independent contractor’ will be ignored if the parties, by their actual conduct, act like ‘employer-employee.’” (Toyota Motor Sales U.S.A., Inc. v. Superior Court (1990) 220 Cal.App.3d 864, 877). Here, based on the Borello factors, there is sufficient evidence of employer-employee conduct to create a triable issue.

Even though the agreement between Batista and AMS is labeled “independent contractor”, an "agreement characterizing the relationship as one of ‘client- independent contractor’ will be ignored if the parties, by their actual conduct, act like ‘employer-employee.’” (Toyota Motor Sales U.S.A., Inc. v. Superior Court (1990) 220 Cal.App.3d 864, 877). Here, based on the Borello factors, there is sufficient evidence of employer-employee conduct to create a triable issue.

, for determinin whether a worker is an employee or an independent contractor.; and the exception set forth i §2780 (I) for “independent radio promoters” applies to Plaintiff The Second Amended Complaint alleges that Plaintiff stopped working at KCSO in Ma 2020, four months before Labor Code §§2775 and 2780 were enacted.

The independent contractor defense[2] is inapplicable to this cause of action because employee status is not an element of a cause of action for IIED. C.

Again, this is predicated on whether or not Plaintiff is an employee or independent contractor. Since Defendants failed to establish that Plaintiff was an independent contractor under Dynamex, their motion also fails as to this claim. FEHA (12th-16th Causes of Action) Again, the parties dispute whether Dynamex applies.

The question of whether a plaintiff was an employee or an independent contractor are two sides of the same coin. Independent contractor status is not an affirmative defense, nor is it new matter. Instead, the complete relevant factual nature of the parties' relationship determines whether the plaintiffs' status was that of employee or independent contractor. The plaintiffs' prima facie showing does not need to "disprove" independent contractor status.

Defendants do not address Montiels status vis a vis Defendants (employee vs. independent contractor) and how that impacts the Privette analysis. For this reason, the motion for summary judgment fails.

¶ 7 I was not involved in any discussions regarding Plaintiffs status as an independent contractor nor any discussions regarding whether Plaintiff should be classified as an employee (or not). 39:11-18, 39:23- 40:1. Defendant Edelmann was unable to outright deny that there were no discussions with her regarding Plaintiffs status as an independent contractor.

independent contractor.”

Generally, whether a person is an independent contractor or an employee is a question of fact, unless only one inference may be drawn, it is a question of law. (Id. at 1105 fn. 2.)

Plaintiffs assert that Defendants are vicariously liable for Defendant Luis Gonzalez’ negligence because Gonzalez was Defendants’ employee. Defendants contend that Gonzalez was not an employee of Defendants, but rather an independent contractor. A. Applicable Test There are two primary tests to determine if a person is an employee or independent contractor: the “ABC” test articulated in Dynamex Operations W. v.

Plaintiff alleges that he was discharged because Defendant had unlawfully classified him as an independent contractor and he objected to the classification.

The California Supreme Court applied the ABC test to determine whether a worker should be classified as an employee or independent contractor “for purposes of California wage orders, which impose obligations relating to the minimum wages, maximum hours, and a limited number of very basic working conditions (such as minimally required meal and rest breaks) of California employees.” Dynamex Operations W. v. Superior Court (2018) 4 Cal.5th 903, 913-914.

Department of Industrial Relations (1989) 48 Cal.3d 341 (hereafter Borello ) should be applied in determining whether Sharifi is an independent contractor or employee.

Plaintiffs have done so by now alleging that Plaintiffs’ counsel mistakenly classified Decedent as an employee of MARUICHI. MARUICHI further argues that the Staffing Agreement between Express Services, Inc. and MARUICHI (identified in Plaintiffs’ SAC) confirms Decedent’s employee status. (See RJN Ex. 2.) The question of whether a party is an employee or independent contractor is one of fact, unless only one inference may be drawn from all the facts making the employment relationship a question of law.

In the Complaint, Plaintiff alleges Defendants misclassified Plaintiff as an independent contractor and alleges various wage and hour violations under the Labor Code based on the misclassification. The determination of Plaintiff’s status as an employee or independent contractor is based on factors set forth in Dynamex Operations West, Inc. v. Sup. Ct.

Violation of Labor Code §226.8 (9 th COA) [ Issue No. 8 ] Section 226.8 provides, in pertinent part, that it is unlawful to “willful[ly] misclassif[y] an individual as an independent contractor.” (Lab. Code §226.8(a)(1).) In determining whether a worker qualifies as an independent contractor or employee, the existence of an independent contractor agreement is not controlling. ( Bernis v. People (1952)109 Cal.App.2d 253, 267.)

Defendant did not classify or pay Plaintiff as an employee but rather as an independent contractor. ( Id. , ¶ 10.) Defendant initially ignored Plaintiffs requests to be properly classified but eventually put Plaintiff on the payroll as a traditional exempt employee. ( Ibid. ) During Plaintiffs employment, Defendant Desai was allegedly abusive and racist towards Plaintiff and R Bars employees and patrons. ( Id. , ¶ 11.)

As to the employee/independent contractor issue, under SSUMF 2 Staff Pro submits evidence establishing that "[a] material term of the Service Agreement was that Odyssey was required to provide StaffPro with employees, not independent contractors" and under SSUMF 3 that "Maria Ramirez, the principal of Odyssey, testified that she understood that Odyssey would provide employees, and not independent contractors." In opposition as to SSUMF 2, Plaintiff states: 2.

Plaintiff alleges he was not properly classified as an independent contractor and had worked full-time for Defendants for 18 months during which he reported directly to Baak on a daily basis and was doing work that was in the usual course of Defendant’s business. (Complaint ¶11.)

COLLATERAL NEGLIGENCE “The employer of an independent contractor is not liable for the “collateral” or “casual” negligence by an employee of the independent contractor. The Restatement's rule concerning collateral negligence in section 426 reads in relevant part as follows: An employer of an independent contractor . . .

Dynamex related to “the resolution of the employee or independent contractor question in one specific context ... what standard applies, under California law, in determining whether workers should be classified as employees or as independent contractors for purposes of California wage orders, which impose obligations relating to the minimum wages, maximum hours, and a limited number of very basic working conditions (such as minimally required meal and rest breaks) of California employees.”

Defendant further argues that these claims arise from the alleged misclassification and are therefore barred, as Plaintiff was classified as an independent contractor at the time he contends he earned the commissions and he can only recover these amounts as an employee.

Defendant further argues that these claims arise from the alleged misclassification and are therefore barred, as Plaintiff was classified as an independent contractor at the time he contends he earned the commissions and he can only recover these amounts as an employee.

Defendant further argues that these claims arise from the alleged misclassification and are therefore barred, as Plaintiff was classified as an independent contractor at the time he contends he earned the commissions and he can only recover these amounts as an employee.

Defendant further argues that these claims arise from the alleged misclassification and are therefore barred, as Plaintiff was classified as an independent contractor at the time he contends he earned the commissions and he can only recover these amounts as an employee.

Defendant further argues that these claims arise from the alleged misclassification and are therefore barred, as Plaintiff was classified as an independent contractor at the time he contends he earned the commissions and he can only recover these amounts as an employee.

Defendant further argues that these claims arise from the alleged misclassification and are therefore barred, as Plaintiff was classified as an independent contractor at the time he contends he earned the commissions and he can only recover these amounts as an employee.

Defendant further argues that these claims arise from the alleged misclassification and are therefore barred, as Plaintiff was classified as an independent contractor at the time he contends he earned the commissions and he can only recover these amounts as an employee.

A contractor may avoid the obligation to obtain workers compensation coverage for all of the various individuals and day laborers if they were classified as an independent contractor rather than an employee as the requirements of the Workers' Compensation Act extend only to an "`employee.'" S. G. Borello & Sons, Inc. (1989) 48 C3d 341, 349. Defendant concedes that Plaintiff is reputedly licensed by the California State License Board as a C-8 Concrete contractor.

First Cause of Action for Misclassification as Independent Contractor In the complaint, Plaintiff alleges Defendants misclassified Plaintiff as an independent contractor in violation of Labor Code § 226.8. (Compl., ¶ 19.) Section 226.8 provides, in relevant part, that it is unlawful to “willful[ly] misclassif[y] an individual as an independent contractor.” (Lab. Code § 226.8(a)(1).) Defendants argue that Plaintiff was never an employee of Defendants.

As [t]he first employee on the jobsite shall be a Landscape Irrigation Laborer; [and] the second employee on the jobsite must be an Apprentice or a Landscape Irrigation Laborer . . . .” (AR 896.) There must be two Landscape Irrigation Laborers on the jobsite before an employee may be classified as a Tender. (AR 896.) Petitioner erred when it classified Rojas as a Landscape Tender—according to its own records—because there was only one Landscape Irrigation Laborer on the jobsite.

Plaintiff alleges Defendants misclassified him and their other intermodal truck drivers (“Drivers”) as “independent contractors” instead of “employees.” [Complaint, ¶1.] Plaintiff alleges that Defendants’ classification scheme violates firmly rooted California law concerning who is to be considered an employee versus an independent contractor. [Id.]

Defendant did not classify or pay Plaintiff as an employee but rather as an independent contractor. Defendant initially ignored Plaintiffs requests to be properly classified but eventually put Plaintiff on the payroll as a traditional exempt employee. During Plaintiffs employment, Defendant Desai was allegedly abusive and racist towards Plaintiff and R Bars employees and patrons. This resulted in multiple altercations, causing Plaintiff to fear for his safety.

White never participated in a discussion regarding the classification of the technicians as independent contractors and did not draft or edit the independent contractor agreements, and was not a signatory for any of the contracts. Ms. White did not draft, nor contribute to the drafting of, the independent contractor agreements entered into by White Communications and service technicians in California. NOL, Exs. A-G; J. White Decl., ¶¶ 6-7; S. White Decl., ¶ 3. Nor did Ms.

Dynamex is clear that workers who are hired provide services to employers are presumed to be employees unless the employer meets its burden to demonstrate that these individuals should be classified as independent contractors.

This instant cause of action is derivative of Plaintiff’s claim that she was improperly classified as an exempt employee by CAC and CAC’s acts were unlawful pursuant to the First, Second, Third, Fifth and Sixth Causes of action. However, as set forth above, Defendant has provided evidence that Plaintiff was properly classified as an exempt employee and Plaintiff has failed to present admissible evidence showing a triable issue of material fact. (CCP 437c(p)(2).)

While Plaintiff argues that Defendant tried to convince him to accept being classified as an independent contractor, Plaintiff did not submit evidence that could show that Defendant had been responsible for this classification, that Defendant was responsible for issuing his paychecks, or that Defendants influence in these limited interactions was sufficient to transfer him into Plaintiffs employer.

To this end, the Legislature allows the Commission to be financially independent by formulating its own budget; to be politically independent by appointing its own staff; and to be functionally independent by supervising its own employees.” Lynwood , supra, 223 Cal.App.3d at 1468 . The governing board of a school district has a duty to ‘employ, pay, and otherwise control the services’ of classified employees. §45241 . The personnel director is a classified employee. §45104.

Defendant did not classify or pay Plaintiff as an employee but rather as an independent contractor. Defendant initially ignored Plaintiffs requests to be properly classified but eventually put Plaintiff on the payroll as a traditional exempt employee. During Plaintiffs employment, Defendant Desai was allegedly abusive and racist towards Plaintiff and R Bars employees and patrons. This resulted in multiple altercations, causing Plaintiff to fear for his safety.

Based on defendant's special interrogatory responses, there is one non-exempt employee and 17 persons classified as independent contractors in California. Defendant has identified these persons by position, gender, race and age in the interrogatory responses, which alleviates the third party privacy concerns. THEREFORE, the motion to compel is GRANTED.

During her employment with Defendants, Plaintiff was classified as an independent contractor when, in truth, Plaintiff worked as an hourly non-exempt employee. By misclassifying Plaintiff as an independent contractor and treating her accordingly, Defendants violated numerous wage and hour laws. LEGAL STANDARD CCP section 2031.320 sets forth the conditions to make a motion to compel compliance with an inspection demand.

During her employment with Defendants, Plaintiff was classified as an independent contractor when, in truth, Plaintiff worked as an hourly non-exempt employee. By misclassifying Plaintiff as an independent contractor and treating her accordingly, Defendants violated numerous wage and hour laws. B. Answer Defendants answered the FAC on October 29, 2019.

Instead, Plaintiff focuses exclusively on whether he was an employee or an independent contractor. It is fundamentally unclear how this argument demonstrates Defendants’ affirmative defenses lack merit. For example, even accepting Plaintiff should have been classified as an employee, it is not obvious how this demonstrates Defendants cannot establish they did, in fact, pay him as a defense to his claims.

During the time period of January 27, 2017, to on or around May 1, 2020, TRMDI considered Plaintiff to be an independent contractor. On or around May 1, 2020, TRMDI changed Plaintiff’s status from independent contractor to employee. Plaintiff’s job duties did not change as a result of her status change from independent contractor to employee on or around May 1, 2020.

During the time period of January 27, 2017, to on or around May 1, 2020, TRMDI considered Plaintiff to be an independent contractor. On or around May 1, 2020, TRMDI changed Plaintiff’s status from independent contractor to employee. Plaintiff’s job duties did not change as a result of her status change from independent contractor to employee on or around May 1, 2020.

During the time period of January 27, 2017, to on or around May 1, 2020, TRMDI considered Plaintiff to be an independent contractor. On or around May 1, 2020, TRMDI changed Plaintiff’s status from independent contractor to employee. Plaintiff’s job duties did not change as a result of her status change from independent contractor to employee on or around May 1, 2020.

During the time period of January 27, 2017, to on or around May 1, 2020, TRMDI considered Plaintiff to be an independent contractor. On or around May 1, 2020, TRMDI changed Plaintiff’s status from independent contractor to employee. Plaintiff’s job duties did not change as a result of her status change from independent contractor to employee on or around May 1, 2020.

During the time period of January 27, 2017, to on or around May 1, 2020, TRMDI considered Plaintiff to be an independent contractor. On or around May 1, 2020, TRMDI changed Plaintiff’s status from independent contractor to employee. Plaintiff’s job duties did not change as a result of her status change from independent contractor to employee on or around May 1, 2020.

During the time period of January 27, 2017, to on or around May 1, 2020, TRMDI considered Plaintiff to be an independent contractor. On or around May 1, 2020, TRMDI changed Plaintiff’s status from independent contractor to employee. Plaintiff’s job duties did not change as a result of her status change from independent contractor to employee on or around May 1, 2020.

During the time period of January 27, 2017, to on or around May 1, 2020, TRMDI considered Plaintiff to be an independent contractor. On or around May 1, 2020, TRMDI changed Plaintiff’s status from independent contractor to employee. Plaintiff’s job duties did not change as a result of her status change from independent contractor to employee on or around May 1, 2020.

contractor, when, in fact, she was an employee.

On October 12, 2020, Defendant filed a Demand for Arbitration with the American Arbitration Association seeking declaratory judgment as to whether Plaintiff was properly classified as an independent contractor. (Behnia Dec. ¶ 8, Ex. F.)

Defendant did not classify or pay Plaintiff as an employee but rather as an independent contractor. Defendant initially ignored Plaintiffs requests to be properly classified but eventually put Plaintiff on the payroll as a traditional exempt employee. During Plaintiffs employment, Defendant Desai was allegedly abusive and racist towards Plaintiff and R Bars employees and patrons. This resulted in multiple altercations, causing Plaintiff to fear for his safety.

This test starts from the premise that a business may not evade the prohibitions or responsibilities of being an employer by unilaterally determining a worker's status as “independent contractor” or by “requiring the worker, as a condition of hiring, to enter into a contract that designates the worker an independent contractor.” (Ibid.)

It is not within the Courts discretion to weigh each factor on Summary Adjudication to determine whether the Huffs were employees or Independent Contractors. Such a determination shall be made by the trier of fact. With respect to Rouzands status as an employee of independent contractor, LuAnn argues that he was an independent contractor. LuAnn notes that he established his own services schedule and determined what needed to be done and how it would be done. (AMF 5.)

There is a Triable Issue of Fact as to whether Barragan was Citywide’s Independent Contractor. There is No Evidence that Barragan was RMS’s Employee. Citywide and RMS assert that they are entitled to summary judgment in this matter because Barragan was an independent contractor at the time of the incident, not their employee. The landmark test for determining whether an individual is an employee or an independent contractor was articulated in S. G. Borello & Sons, Inc. v.

Finally, the Dynamex court also articulated the “ABC” test for the “suffer or permit to work” definition, which states that a worker is properly classified as an independent contractor only if the employer can establish all of the following: (Id. at 916-917; Cal. Labor Code § 2750.3, subds. (a)(1)(A)-(C).)

Department of Industrial Relations (1989) 48 Cal.3d 341 (hereafter Borello ) should be applied in determining whether Ren is an independent contractor or employee.

Defendant moves for summary judgment or adjudication on the grounds that (1) she must be characterized as an independent contractor, not as an employee, and therefore her employment-based and sexual harassment causes of action fail as a matter of law; and (2) her contract claims fail because she was paid all that was due under her independent contractor Page 4 of 8 agreement.

Defendant moves for summary judgment or adjudication on the grounds that (1) she must be characterized as an independent contractor, not as an employee, and therefore her employment-based and sexual harassment causes of action fail as a matter of law; and (2) her contract claims fail because she was paid all that was due under her independent contractor Page 4 of 8 agreement.

Defendant moves for summary judgment or adjudication on the grounds that (1) she must be characterized as an independent contractor, not as an employee, and therefore her employment-based and sexual harassment causes of action fail as a matter of law; and (2) her contract claims fail because she was paid all that was due under her independent contractor Page 4 of 8 agreement.

Defendant moves for summary judgment or adjudication on the grounds that (1) she must be characterized as an independent contractor, not as an employee, and therefore her employment-based and sexual harassment causes of action fail as a matter of law; and (2) her contract claims fail because she was paid all that was due under her independent contractor Page 4 of 8 agreement.

Defendant moves for summary judgment or adjudication on the grounds that (1) she must be characterized as an independent contractor, not as an employee, and therefore her employment-based and sexual harassment causes of action fail as a matter of law; and (2) her contract claims fail because she was paid all that was due under her independent contractor Page 4 of 8 agreement.

Defendant moves for summary judgment or adjudication on the grounds that (1) she must be characterized as an independent contractor, not as an employee, and therefore her employment-based and sexual harassment causes of action fail as a matter of law; and (2) her contract claims fail because she was paid all that was due under her independent contractor Page 4 of 8 agreement.

Defendant moves for summary judgment or adjudication on the grounds that (1) she must be characterized as an independent contractor, not as an employee, and therefore her employment-based and sexual harassment causes of action fail as a matter of law; and (2) her contract claims fail because she was paid all that was due under her independent contractor Page 4 of 8 agreement.

Defendant did not classify or pay Plaintiff as an employee but rather as an independent contractor. Defendant initially ignored Plaintiffs requests to be properly classified but eventually put Plaintiff on the payroll as a traditional exempt employee. During Plaintiffs employment, Defendant Desai was allegedly abusive and racist towards Plaintiff and R Bars employees and patrons. This resulted in multiple altercations, causing Plaintiff to fear for his safety.

Defendant did not classify or pay Plaintiff as an employee but rather as an independent contractor. ( Id. , ¶ 10.) Defendant initially ignored Plaintiffs requests to be properly classified but eventually put Plaintiff on the payroll as a traditional exempt employee. ( Ibid. ) During Plaintiffs employment, Defendant Desai was allegedly abusive and racist towards Plaintiff and R Bars employees and patrons. ( Id. , ¶ 11.)

Defendant did not classify or pay Plaintiff as an employee but rather as an independent contractor. Defendant initially ignored Plaintiffs requests to be properly classified but eventually put Plaintiff on the payroll as a traditional exempt employee. During Plaintiffs employment, Defendant Desai was allegedly abusive and racist towards Plaintiff and R Bars employees and patrons. This resulted in multiple altercations, causing Plaintiff to fear for his safety.

Plaintiff argues that the misclassification of his status as an independent contractor rather than an employee is not related to the Agreement either. The Court disagrees. The Agreement is titled “Physician Independent Contractor Agreement.” (Daswani Decl., Ex. A at p. 1.) In the Agreement, Plaintiff expressly agrees that he is an independent contractor, and not an employee. (Daswani Decl., Ex. A at pp. 3–4.)

In addition, the complaint alleges that because the written agreement failed to state plaintiff’s classification as either an independent contractor or employee, or defendant’s expectations as to plaintiff’s work hours, the duties set forth in the written agreement created an implied-in-fact agreement that plaintiff would work from 7:00 a.m. to at least 6:00 p.m., Monday through Friday, and that he would be compensated as an employee. (FAC, ¶43.)

Here, the Second cause of action alleges that Defendants terminated Plaintiff’s employment and mis-classified her as an independent contractor in order avoid paying the bonuses and other compensation owed to Plaintiff under the written agreement and “[a]s a result of Defendant’s wrongful acts and breach of contract as alleged herein, Defendant breached the covenant of good faith and fair dealing…”. (See SAC, ¶ 16.)

Border Transportation: "'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." (California Trucking Assn. v. Su (9th Cir. 2018) 903 F.3d 953, 959, fn. 4.)

The issue in Dynamex “relate[d] to the resolution of the employee or independent contractor question in one specific context.”

GAPP responded, Plaintiff was hired as an employee and then demanded that he be reclassified as an independent contractor. That response is not complete and straightforward. The response supports the allegation rather than contradicting it. If plaintiff demanded that he be reclassified as an independent contractor, that corroborates the allegation that defendants changed Plaintiffs classification to an independent contractor.

Specifically, Defendants argue, (1) “records with the California Secretary of State demonstrate that Backgrid did not even exist during the time period relevant to the Arshakyan Case, and in fact, was not even formed until the year after the lawsuit was filed” and (2) “even if the Photographers could have earned money from Backgrid in the 2012 to 2016 period, the Dynamex ABC Standard would not contemplate whether an individual should be classified as an employee or an independent contractor based on relationships

Even if it were determined that defendant shifted the burden of proof, plaintiff has presented facts in opposition that create triable issues of fact as to whether plaintiff should be classified as an exempt or non exempt employee. =(302/PJM/VC)

Second, since CCP §1281.97(a)(2) provides that an employee need only tender “the filing requirements necessary to initiate an arbitration,” and the term “employee” includes “any person who is, was, or who claims to have been misclassified as an independent contractor or otherwise improperly placed into a category other than employee” (see CCP §1280(f)), it is presently irrelevant whether plaintiff will – at the end of the day – be classified as an employee or an independent contractor.