Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) 21 finding that where the worker’s work is an “integral” rather than “incidental” part of the hiring company’s business, part B is not met.91 Dynamex contrasted the facts of two decisions from other states using the ABC test—McPherson Timberlands v. Unemployment Insurance Commission,92 in which timber cutting and harvesting was found to be an integral part of the hiring company’s timber management business, and Great Northern Construction, Inc. v. Department of Labor,93 in which specialized historic reconstruction work was found not to be integral to the company’s general commercial and residential contracting work. Great Northern noted that the hiring company did not need this expertise to perform its regular work.94 3. Customarily Engaged in an Independent Business Part C requires that the worker be customarily engaged in an independent business, and has independently decided to go into business (and not at the direction or suggestion of the hiring entity).95 Dynamex explained: Such an individual generally takes the usual steps to establish and promote his or her independent business—for example, through incorporation, licensure, advertisements, routine offerings to provide the services of the independent business to the public or to a number of potential customers, and the like.96 Simply allowing the worker to work for others is not sufficient: “the appropriate inquiry ... is whether the [worker] actually has such an independent business, occupation or profession, not whether he or she could have one.”97 B. Post-Dynamex Cases 1. Curry v. Equilon Enterprises, LLC: Application of Dynamex to Joint Employer Analysis The California Court of Appeal addressed the application of Dynamex to the joint employer context in Curry v. Equilon Enterprises, LLC.98 In Curry, the plaintiff, an employee of a gas station operator, alleged he was jointly 91 See, e.g., Duffey v. Tender Heart Home Care Agency, LLC, 31 Cal. App. 5th 232, 254 (2019) (analyzing “whether the service rendered is an integral part of the alleged employer's business.”) 92 714 A.2d 818 (Maine 1998). 93 161 A.3d 1207 (Vermont 2016). 94 Courts outside of California applying the ABC test have looked at how regular the service is in the employer’s business. See, e.g., Mattatuck Historical Society v. Administrator, 238 Conn. 273, 281 (Conn. Sup. Ct. 1996) (“In our view, ‘usual course of business’ ... means that the enterprise performs the activity on a regular or continuous basis, without regard to the substantiality of the activity in relation to the enterprise's other business activities.”) (quoting Conn. Gen. Stat. Ann. § 31-222); Yurs v. Director of Labor, 94 Ill. App.2d 96, 104 (1968) (organist for funeral home was employee, as “the frequency of the inclusion of music in the funeral services indicated that it was a usual part of the services offered by [the hiring company].”). Some courts have looked to the entity’s own definition of its business as “indicative of the usual course of that business.” Sebago v. Boston Cab Dispatch, Inc., 471 Mass. 321, 333 (2015); Ruggiero v. American United Life Ins. Co., 137 F. Supp. 3d 104, 118 (2015) (court “look[s] to how the putative employer holds itself out and to other indicia to determine the scope of its business”) (citing Martins v. 3PD, Inc., 2013 WL 1320454, at *13-14 (D. Mass. Mar. 28, 2013)). 95 Dynamex, 4 Cal. 5th at 962; Borello, 48 Cal. 3d at 354 (worker must have “independently chosen the burdens and benefits of self-employment”). 96 Dynamex, 4 Cal. 5th at 962. 97 Dynamex, 4 Cal. 5th at 962 n.30 (quoting McGuire v. Dept. of Emp. Security, 768 P.2d 985-988 (Utah Ct. App. 1989)). 98 23 Cal. App. 5th 289 (2018).
RkJQdWJsaXNoZXIy OTkwMTQ4