Wage and Hour Case Notes

• Citation: Vol. 34 No. 2
• Publication year: 2020
• Author: By Leonard H. Sansanowicz

Wage and Hour Case Notes

By Leonard H. Sansanowicz

Leonard H. Sansanowicz is the principal of Sansanowicz Law Group, P.C. and represents employees in all aspects of employment law. He is a member of the Executive Board of the California Lawyers Association, as well as the Executive Committee of the Labor and Employment Section of the Los Angeles County Bar Association. He can be contacted at: leonard@law-slg.com.

Dynamex ABC Test Applies Retroactively and to Labor Code Claims Enforcing the Wage Order's Protections

Gonzales v. San Gabriel Transit, 40 Cal. App. 5th 1131 (2019)

Plaintiff filed a wage and hour case for misclassification of drivers as independent contractors who worked for a transit company that provided transportation services. Plaintiff moved for class certification, which the trial court denied for lack of commonality and typicality. While this matter was pending, the California Supreme Court issued its seminal decision in Dynamex Ops. West, Inc. v. Superior Court, 4 Cal. 5th 903 (2018), in which it adopted an "ABC" test to determine whether a worker was properly classified as an employee or an independent contractor with regard to wage order protections. The court of appeal here found: (1) Dynamex's ABC test applied retroactively to pending wage and hour litigation (defendant did not address the issue on appeal); (2) the ABC test applied equally to Labor Code provisions, not just the wage order under the "suffer or permit" standard, as long as the Labor Code provision sought to enforce the same fundamental protections afforded by the wage order; and (3) Labor Code claims not covered by the applicable wage order were appropriately analyzed under the common law "control" test.¹

Martinez v Combs, Not Dynamex, Determines Joint Employer Liability

Henderson v. Equilon Enters., LLC, 40 Cal. App. 5th 1111 (2019)

Plaintiff alleged he was employed as the station manager for several Shell gas stations owned and operated by defendant Danville Petroleum, Inc. (Danville) and did not receive all overtime, meal period, and rest period premium wages to which he was entitled. Plaintiff also named Equilon Enterprises, LLC, dba Shell Oil Products US (Shell), Danville's franchisor, as his joint employer. Plaintiff settled his claims with Danville. Shell successfully moved for summary judgment that it was not liable as a joint employer.

The court of appeal held that the Dynamex "ABC" test, decided while this case was on appeal, did not apply to the issue of joint employment because it did not fit analytically with the joint employer analysis. The court noted that, at its heart, Dynamex focused on businesses gaining unfair competitive advantages by saving money (owed to both employees and the government) by intentionally misclassifying employees as independent contractors and further depriving workers of their full protections under the law. Here, by contrast, the issue was not whether a worker was properly classified as an employee but rather who should be liable for potential wage and hour violations, i.e., as part of the remedial network of worker protection. Thus, analyzing whether plaintiff's work was "outside [Shell's] usual course of business" (Dynamex's "B" prong) or whether plaintiff was "customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed" for Danville (Dynamex's "C" prong) makes little sense in determining whether Shell controlled plaintiff's employment. Thus...