31 Cal.App.5th 232
Cal. Ct. App.2019Background
- Duffey signed a 2011 "Professional Caregiver Agreement" with Tender Heart, which labeled caregivers as "independent contractors" and outlined referral/fee arrangements; Tender Heart also contracted with clients and billed clients higher rates than caregiver pay.
- Caregivers submitted client-signed timesheets; Tender Heart collected client payments, held funds in trust, paid caregivers and retained the difference as its fee; caregivers could refuse referrals and work for other agencies.
- Tender Heart did not provide training, tools, or supervise caregivers in the field; caregivers performed companionship and personal-attendant tasks in private homes.
- The Domestic Worker Bill of Rights (DWBR) (Labor Code §§1450 et seq.)—effective 2014—requires overtime pay for domestic personal attendants working over nine hours/day or 45 hours/week; Tender Heart did not pay Duffey overtime.
- The trial court granted summary adjudication for Tender Heart, finding Duffey an independent contractor under the Borello common-law test; Duffey appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper legal standard for DWBR worker classification | DWBR's definitions and purpose (not Borello) govern; hiring entity bears burden to prove independent contractor status | Borello common-law control test applies | Court: DWBR controls; apply DWBR definitions and purposes (including Martinez/Dynamex guidance) rather than Borello alone |
| Whether Tender Heart was Duffey's employer under DWBR's "control over wages, hours, or working conditions" | Tender Heart negotiated client rates, determined caregiver pay portions, and handled billing — thus exercised control over wages | Tender Heart says caregivers set/receive pay and can refuse referrals; it is a referral agency, not an employer | Fact issue exists: evidence supports a triable dispute that Tender Heart exercised control over Duffey's wages; summary adjudication improper |
| Whether Duffey was an employee under common-law (Borello) factors | Applying Borello (liberally, given DWBR purpose) Duffey shows indicia of employment (integration into Tender Heart's business, limited profit/loss, lack of bargaining on terms) | Tender Heart emphasizes lack of supervision, ability to refuse shifts, and caregiver contract labeling independent-contractor status | Fact issue exists under common-law factors as construed for DWBR purposes; summary adjudication improper |
| Whether Tender Heart qualifies for the DWBR employment-agency safe harbor (Civ. Code §1812.5095) | Tender Heart did not meet statutory requirement (contract fails to specify how agency referral fee is paid; caregivers' ability to renegotiate pay is disputed) | Tender Heart contends its contracts and billing practices satisfy the safe-harbor requirements | Court: Tender Heart did not prove it meets all statutory factors; fact disputes preclude summary adjudication on this alternative ground |
Key Cases Cited
- S. G. Borello & Sons, Inc. v. Department of Industrial Relations, 48 Cal.3d 341 (Cal. 1989) (articulates common-law multi-factor test for employee v. independent contractor)
- Dynamex Operations West, Inc. v. Superior Court, 4 Cal.5th 903 (Cal. 2018) (endorses ABC test for wage-order "suffer or permit" standard and emphasizes statutory-purpose analysis)
- Martinez v. Combs, 49 Cal.4th 35 (Cal. 2010) (interprets wage-order definitions of "employ" and "employer," including "control over wages, hours, or working conditions")
- Futrell v. Payday California, Inc., 190 Cal.App.4th 1419 (Cal. Ct. App. 2010) (explains that "control over wages" means power to set or negotiate pay)
- Linton v. DeSoto Cab Company, Inc., 15 Cal.App.5th 1208 (Cal. Ct. App. 2017) (applied Borello to wage claims but issued before Dynamex clarified standards)