22 Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) Seyfarth Shaw LLP | www.seyfarth.com employed by Equilon Enterprises, doing business as Shell Oil Products.99 Shell owned hundreds of service stations throughout California and leased them to operators, who hired employees to run the stations. Shell required its operators to provide specific services (and thus it set standards and duties applicable to employees), and its contracts with operators provided that the operators were responsible for hiring and employing their own workers (but that operators would remove employees at Shell’s request for good cause shown).100 The plaintiff in Curry was employed by a gas station operator, and filed a wage and hour lawsuit alleging that he and other employees of operators were misclassified as exempt and that Shell jointly employed the operators’ employees. Applying the joint employer test set forth in Martinez v. Combs,101 Curry affirmed the trial court’s grant of summary judgment against the claim of joint employment. Although the plaintiff argued that the Dynamex test should control the question of joint employment, Curry focused on the public policy considerations underlying Dynamex: [T]he Supreme Court's policy reasons for selecting the "ABC" test are uniquely relevant to the issue of allegedly misclassified independent contractors. In the joint employment context, the alleged employee is already considered an employee of the primary employer; the issue is whether the employee is also an employee of the alleged secondary employer. Therefore, the primary employer is presumably paying taxes and the employee is afforded legal protections due to being an employee of the primary employer. As a result, the policy purpose for presuming the worker to be an employee and requiring the secondary employer to disprove the worker's status as an employee is unnecessary in that taxes are being paid and the worker has employment protections.102 Thus, Curry reasoned that the primary goals of the ABC test are not relevant in the joint employment context. 2. Garcia v. Border Transportation Group, LLC An early and especially disappointing application of Dynamex came in Garcia v. Border Transportation Group, LLC.103 Garcia reversed a summary judgment for the employer against claims by a taxi driver who alleged that Border Transportation had misclassified him as an independent contractor. Garcia held that, for purposes of seeking summary judgment, Border Transportation had failed to satisfy part C of the ABC test.104 Garcia stated that Dynamex had adopted a “stringent” version of part C, requiring “an existing, not potential, showing of independent business operation.”105 The plaintiff taxi driver, in signing up with Border Transportation, had obtained a driver’s permit that limited him to working for Border Transportation, and the court held that Dynamex’s stringent application of part C “requires 99 Id. at 300. 100 Id. at 307. 101 49 Cal. 4th 35 (2010). 102 Equilon, 23 Cal App. 5th at 313-14. 103 28 Cal. App. 5th 558 (2018). 104 Id. at 576. 105 Id. at 574.
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