Duffey v. Tender Heart Home Care Agency, LLC
242 Cal. Rptr. 3d 460
| Cal. Ct. App. 5th | 2019Background
- Duffey signed a 2011 "Professional Caregiver Agreement" with Tender Heart stating she was an independent contractor; Tender Heart also had standard client contracts and rate sheets showing higher client rates than caregiver pay.
- Tender Heart referred caregivers to clients, billed clients based on client rates, paid caregivers from receipts, and retained the difference as an agency fee; caregivers submitted client‑signed timesheets.
- Caregivers could reject referrals and work for other agencies; Tender Heart did not train, supply tools, or supervise caregivers in performing services.
- DWBR (Labor Code §§1450 et seq.) enacted Jan 1, 2014, requires overtime pay for domestic personal attendants exceeding 9 hours/day or 45 hours/week; Tender Heart did not pay Duffey overtime.
- Trial court granted Tender Heart summary adjudication on DWBR claim applying Borello (common‑law) test and finding Duffey an independent contractor; Duffey appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper test to classify worker under DWBR | DWBR standard controls; Borello alone is wrong | Borello (common‑law) test was appropriate | Court: DWBR controls; apply statutory purpose and Martinez/Dynamex principles, not only Borello |
| Who bears burden to prove independent contractor status | Hiring entity (agency) should bear burden | Contractor bears burden | Court: hiring entity bears burden to prove independent‑contractor status |
| Whether Tender Heart was employer under DWBR via control over wages, hours, or working conditions | Duffey: Tender Heart controlled wage-setting and therefore is employer | Tender Heart: caregivers negotiate/pay independently; agency is mere referral service | Court: triable issue exists—evidence supports that Tender Heart may exercise control over wages (dispute of fact) |
| Whether Duffey was an employee under common‑law factors | Duffey: Borello factors, viewed liberally, support employee status (integration into business, limited profit/loss, take‑it‑or‑leave contract, rate structure) | Tender Heart: caregivers are independent, can reject shifts, not supervised, agency only refers | Court: triable issue exists under common‑law factors as applied with DWBR’s protective purpose |
| Whether Tender Heart fit the DWBR employment‑agency safe harbor (Civ. Code §1812.5095) | Duffey: Tender Heart failed to satisfy contract requirements (e.g., specify how referral fee is paid; renegotiation freedom) | Tender Heart: contract terms and practice satisfy safe harbor | Court: disputed; record does not show required contractual specificity—cannot affirm on safe‑harbor ground |
Key Cases Cited
- S. G. Borello & Sons, Inc. v. Department of Industrial Relations, 48 Cal.3d 341 (Cal. 1989) (multi‑factor common‑law test for employee v. independent contractor)
- Dynamex Operations West, Inc. v. Superior Court, 4 Cal.5th 903 (Cal. 2018) (adopts ABC test for wage‑order "suffer or permit" standard and emphasizes statutory‑purpose approach)
- Martinez v. Combs, 49 Cal.4th 35 (Cal. 2010) (interprets wage‑order definitions—"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) ("control over wages" means power to negotiate/set rate)
- Ayala v. Antelope Valley Newspapers, Inc., 59 Cal.4th 522 (Cal. 2014) (right to discharge at will is strong evidence of control)