Cal-Peculiarities: How California Employment Law is Different 2022 Edition

390 | 2022 Cal-Peculiarities ©2022 Seyfarth Shaw LLP  www.seyfarth.com 46 AB 170, 2019 bill adding Lab. Code § 2750.3(b)(7), was thus followed by AB 323, a 2020 bill. Governor Newsom signed AB 1506, which amended Lab. Code § 2783 by extending the exemption to January 1, 2025, into law in September 2021. 47 People v. Maple Bear , No. 2019-48731, slip op. at 3, 4, 5 (San Diego Superior Court Feb. 18, 2020). 48 State of California v. Maplebear, Inc. , No. D077380 (Cal. Ct. App. Feb. 17, 2021), slip op. at 8 (unpublished). 49 Olson v. State of California, 2020 WL 905572, at *14 (C.D. Cal. Feb. 10, 2020) (rejecting argument that it violates equal protection to apply the ABC test to companies providing internet applications for drivers and travelers while exempting ABC coverage for such favored classes as doctors, lawyers, accountants, investment advisers, commercial fisherman, travel agents, and so on). See Olson v. California , No. CV1910956DMGRAOX, 2020 WL 6439166, at *12 (C.D. Cal. Sept. 18, 2020) (granting motion to dismiss Uber and Postmates plaintiffs’ complaint). 50 Lab. Code § 2750.3(c)(B)(ix), (x). AB 2257 removed the 35 “submission” cap as a requirement of contractor status. See Lab. Code § 2778(b)(2)(J). 51 Am. Soc’y of Journalists & Authors, Inc. v. Becerra , No. CV1910645PSGKSX, 2020 WL 1444909, at *10 (C.D. Cal. Mar. 20, 2020), appeal dismissed, No. 20-55408, 2020 WL 6075667 (9th Cir. Aug. 20, 2020). 52 California Trucking Ass’n v. Becerra ,433 F. Supp. 3d 1154 (S.D. Cal. 2020), rev’d sub nom. California Trucking Ass’n v. Bonta, 996 F.3d 644 (9th Cir. 2021). Becerra relies on a state judicial decision, California v. Cal Cartage Transp. Express, LLC , No. BC689320 (Los Angeles Superior Ct. Jan. 8, 2020), which ruled that the ABC test effectively prohibits motor carriers from using independent contractors to provide transportation services and thus has a significant, impermissible effect on motor carriers’ “prices, routes, and services” that runs afoul of the FAAAA. The State and the labor union appealed and the Ninth Circuit reversed, holding that the state statute had only a tenuous, remote, or peripheral connection to rates, routes, or services and thus was not preempted by FAAAA as applied to motor carriers. California Trucking Ass’n v. Bonta , 996 F.3d 644 (9th Cir. 2021). 53 California Trucking Ass’n v. Bonta , 996 F.3d 644 (9th Cir. 2021). 54 People v. Superior Court (Cal Cartage Transportation Express, LLC) , 57 Cal. App. 5th 619 (2020). 55 Lab. Code § 2754. 56 See § 1.5. For the standard that the EDD applies in determining whether a worker is an employee or independent contractor, see the Employment Determination Guide, https://www.edd.ca.gov/pdf_pub_ctr/de38.pdf (visited Mar. 14, 2022)(listing multiple elements to consider: instructions/supervision, training, integration, personal services, use of assistants, continuing relationship, hours of work, full-time work, work done on premises, sequence of work, reports, payments, expenses, tools and materials, investment, profit or loss, work for multiple firms, services offered to general public, right to fire, right to quit, custom in industry, level of skill required, beliefs of the parties, and business decisions). 57 22 Cal. Code Regs § 4304-1. 58 Lab. Code § 226.8(a)(1). 59 Lab. Code § 226.8(a)(2). 60 Lab. Code § 226.8(b), (c). 61 Lab. Code § 226.8(e)(1). 62 Lab. Code § 226.8(e)(2). 63 Lab. Code § 2753(a). Liability under this Section does not extend to persons who are advising their employer or to licensed attorneys who are providing legal advice to their clients. Lab. Code § 2753(b). 64 Noe v. Superior Court (Levy Premium Foodserv. Ltd. P’ship) , 237 Cal. App. 4th 316, 334-41 (2015). There may, however, be a UCL claim for conduct made unlawful by Section 226.8. See id. at 326 (“the UCL … might provide plaintiffs some form of remedy for a violation of section 226.8”). 65 Lab. Code § 2810(a). 66 Lab. Code § 2810(g). 67 Lab. Code § 2810(f). 68 Hawkins v. TACA Int’l Airlines, S.A. , 223 Cal. App. 4th 466, 471, 480 (2014). 69 Lab. Code § 2810.3(b).