Mejia v. Roussos Constr., Inc., 76 Cal. App. 5th 811 (2022)

Plaintiffs, unlicensed flooring installers, installed floors on behalf of Roussos Construction, a general contractor. There were three individuals working between plaintiffs and Roussos whom plaintiffs called “supervisors” and Roussos called “subcontractors.” At trial, Roussos maintained that it used independent contractors (the three individuals) who were licensed to perform work not permitted by Roussos’ contractor’s license and that those subcontractors hired and paid plaintiffs and were responsible for complying with the applicable labor laws. The parties disagreed as to the appropriate jury instruction to be given, with Roussos contending the “ABC test” for determining employee vs. independent contractor status can only be applied if the workers first established they were actually hired by Roussos or its agent. Plaintiffs countered that there is no hiring test articulated in Dynamex Ops. W. v. Superior Court, 4 Cal. 5th 903 (2018), the California Supreme Court opinion that adopted the ABC Test in California. The trial court ultimately agreed with Roussos: “This jury does need to make the predicate finding of whether or not Roussos Construction was the hiring entity.” After being so instructed, the jury returned a verdict in Roussos’ favor on all counts. In this opinion, the Court of Appeal reversed the judgment on the four wage and hour counts involving the ABC Test, holding that a “threshold hiring entity test” was not intended by the Dynamex court.