CMCP Diversity Matters - January/February 2019

was tasked with determining
when an employment
relationship exists for purposes
of those statutes. Id. at 64
(“As we now have shown, an
examination of section 1194 in
its full historical and statutory
context shows unmistakably
that the Legislature intended to
defer to the IWC’s definition of
the employment relationship in
actions under the statute.”)
Notably, Dynamex did not
overrule Martinez; rather, it
cited Martinez with approval
and merely expanded on one
of those alternative definitions
(i.e., the “suffer or permit to
work” definition). Consequently,
while Garcia expressly stated
that the plaintiff’s overtime
claims in that case were “nonwage
order” claims, and that
the ABC test therefore did not
apply to those claims, this part
of the court’s decision must
be viewed within the context
of the fact that the governing
wage order in that case -- Wage
Order 9, which covers, among
other things, taxicab drivers in
the transportation industry --
contains a provision specifically
excluding taxicab drivers from
certain protections under that
wage order, including overtime
protections. Because taxicab
drivers do not have overtime
protections under Wage Order
9, the Garcia court appeared
to hold that their status as
employees for purposes of
their overtime claims under
labor code sections 1194 and
1197, supra, would have to be
reviewed under the Borello
“right to control” standard.
Whether or not that analysis
is correct, it would seem that
Garcia will have limited value
to employers seeking to argue
that the more favorable Borello
test applies to overtime claims
that are being pursued under
the labor code, as distinguished
from overtime claims pursued
under the wage orders. This is
because in most wage and hour
cases, the claims are based
on the wage orders (minimum
wages, overtime, meal and rest
breaks, paystub violations).
The only types of claims that
still might benefit from Borello
are claims for waiting time
penalties brought under labor
code section 203, and claims
for expense reimbursements
brought under labor code
section 2802.
Bethanie represents management in a variety of labor
and employment matters, including discrimination,
harassment, retaliation, wrongful termination, and wage
and hour. She defends employers in administrative,
single plaintiff, and class action claims, and counsels
clients regarding various employment-related issues,
including evaluating personnel policies and payment
practices. For more info about Bethanie, click here.
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