Becerra v. The McClatchy Co., 2021 WL 4472625 (Cal. Ct. App. 2021)

Newspaper home delivery carriers for The Fresno Bee sued for violation of the Unfair Competition Law for failure to pay their mileage expenses as required by Cal. Lab. Code § 2802. The Trial court determined the carriers were independent contractors and not employees and entered judgement in favor of the Bee and its affiliated companies (McClatchy). On appeal, the carriers argued, among other things, that the test for employment set out in Dynamex Ops. W., Inc. v. Superior Court, 4 Cal. 5^th 903 (2018) applies to the case.  The Court of Appeal held that the Dynamex ABC test does not apply because it is limited to claims governed by wage order that employ the “suffer or permit to work” standard, which are not at issue in this case.

However, the Court reversed the trial court’s judgment, holding that while the determination of whether the carriers are employees or independent contractors is governed by the common law test of S.G. Borello & Sons, Inc. v. Department of Indus. Relations, 48 Cal. 3d 341 (1989), the trial court failed to properly analyze the factors required by that opinion by, among other things, relying upon inapplicable regulations from the Employment Development Department.  See also Lawson v. Grubhub, Inc., 13 Cal. 4^th 908 (9^th Cir. 2021) (worker who did not sign class action waiver could not represent other similarly-situated workers who did; action remanded for decision of whether ABC test applies to expense reimbursement claims); American Soc. of Journalists & Authors, Inc. v. Bonta, 2021 WL 4568057 (9^th Cir. 2021) (Assembly Bill 5 did not effectuate content-based preferences for certain kinds of speech by providing a narrower exemption for freelance writers and photographers).