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What’s an “Employee”? Or better yet, how do we figure out whether someone who performs work is an employee or an independent contractor?

Today, a state-wide group of eleven civil rights, legal services, and policy advocacy organizations filed an amicus curiae brief before the California Supreme Court in the case Dynamex Operations West, Inc. v. Superior Court of Los Angeles County. California’s highest court is deciding whether the Industrial Welfare Commission’s (IWC) definitions of employment, as interpreted in Martinez v. Combs, apply to wage and hour claims against a single employer, or whether the common law test in S.G. Borello & Sons, Inc. v. Department of Industrial Relations (“Borello”) controls.

The amicus curiae brief urges the Supreme Court to enforce the broad, three-pronged test in the Industrial Wage Orders. The IWC has defined the term “employer” to include not only (1) those who meet the common law definition, but also (2) those who directly or indirectly control wages, hours, or working conditions, and (3) those who “suffer or permit” a person to work. Dynamex, the petitioner in this case, urges the Court to only apply the common law standard as articulated in Borello. This standard applies twelve factors, with a principal focus on whether a presumed employer had a right to exercise necessary control over the worker.

The brief offers historical background on the origins of the employment definitions established by the IWC, which reach beyond common law principles in order to maximize coverage. The brief also explains the plenary authority of the IWC to regulate wages and other conditions of employment, as recognized in Martinez v. Combs; why the “suffer or permit” standard of employment is applicable to all cases under Labor Code section 1194 for unpaid wages, regardless of the number of putative employers involved; and why the IWC definitions of employer should apply under Labor Code section 2802 for business expense reimbursements.

The California Supreme Court’s ruling in this case may definitively establish the test for employee status in port trucking misclassification cases. Application of the IWC’s broad definition may also clarify confusion as to whether port truck drivers are employees or independent contractors for the drivers themselves, the port trucking industry, government agencies, and the courts. The decision may also affect cases against “sharing economy” companies such as Uber and Lyft, who are also embroiled in litigation over whether they misclassify their drivers as independent contractors.

The California Rural Legal Assistance Foundation, the National Employment Law Project, and the Los Angeles Alliance for a New Economy filed the amicus curiae brief on behalf of Asian Americans Advancing Justice- Los Angeles, Alexander Community Law Center, Impact Fund, La Raza Centro Legal, Legal Aid Society- Employment Law Center, UCLA Center for Labor Research and Education, Women’s Employment Rights Clinic, and Worksafe.

For more information, contact Jean Choi at