Deconstructing Dynamex: Why the Sky Isn’t Falling (Yet) for Public Employers

I. Introduction

The California Supreme Court recently issued Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903, a landmark decision that places a heavy burden on employers in certain industries and occupational fields to demonstrate that their workers are independent contractors rather than employees for the purposes of paying state minimum wages, overtime and related “wage order” matters.

But while the decision undoubtedly affects a dramatic change in the law for many private employers in California, it carries significantly fewer consequences for public employers because they are exempt from many of the requirements in the wage orders at issue in Dynamex.  These exemptions, however, do not relieve public employers of their minimum wage obligations, meal and rest break requirements for certain commercial drivers, and all wage order requirements for certain household and agricultural workers.  Moreover, although charter cities and all counties may have a good basis to argue that they are exempt from the wage orders under the home rule doctrine, courts have reached different results on this issue depending on the duties of the workers at issue.

Accordingly, because public employers are not fully exempt from the wage orders and courts may eventually extend the Dynamex test to worker classification disputes in other contexts, public employers should take care to review their worker classification decisions in light of the new test announced in Dynamex.

II. The Dynamex Decision

In Dynamex, a group of drivers working for Dynamex, a same-day courier and delivery service, brought a class action against the company, asserting that it violated California law by misclassifying them as independent contractors rather than employees.  Most of the causes of action in the complaint rested on Dynamex’s alleged failure to fulfill obligations directly set forth in an Industrial Welfare Commission (“IWC”) wage order governing the transportation industry.1  After the trial court granted class certification and the Court of Appeal refused to disturb the trial court’s certification of claims resting on alleged violations of the wage order, the California Supreme Court granted review to determine the proper test for determining whether a worker is an employee or an independent contractor under the wage order.

Dynamex argued that the question of a worker’s status as an employee or independent contractor must be decided solely by reference to the common law multifactor standard set forth in S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, and that neither of the other two definitions of “employ” contained in the wage order—exercising control or suffering or permitting to work—was relevant to this inquiry.  But the Supreme Court rejected this argument, concluding that the broader “‘suffer or permit to work’ definition of ‘employ’ contained in the wage order may [also] be relied upon in evaluating whether a worker is an employee or, instead, an independent contractor for purposes of the obligations imposed by the wage order.”2

In addition to holding that the multi-factor Borello test is not the only applicable standard for determining whether a worker is an employee or an independent contractor for purposes of the wage orders, the Court adopted a three-part test used in other jurisdictions for determining whether a worker is properly considered an independent contractor under the “suffer or permit to work” standard in the wage order.  Commonly referred to as the “ABC test,” this test “presumptively considers all workers to be employees, and permits workers to be classified as independent contractors only if the hiring business demonstrates that the worker in question satisfies each of three conditions”:

(a) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact; and

(b) that the worker performs work that is outside the usual course of the hiring entity’s business; and

(c) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.3

With respect to part A of the test, the Court explained that it closely mirrors the multi-factor test set forth in Borello and provided examples from other jurisdictions.  Thus, a children’s wear company that designed all the clothing sold by the company and provided all the patterns and yarn for work-at-home knitters and sewers who made the clothing failed to satisfy Part A of the test even though they worked from home on their own machines at their own pace and on the days and at the times of their choosing.4 By contrast, a construction company established that a worker who specialized in historic reconstruction was sufficiently free of the company’s control under Part A of the test where the worker set his own schedule, worked without supervision, purchased all materials he used on his own business credit card, and had declined an offer of employment proffered by the company because he wanted control over its own activities.5

With respect to Part B of the test, the Court explained that it is meant to capture “all individuals who are reasonably viewed as providing services to the business in a role comparable to that of an employee, rather than in a role comparable to that of a traditional independent contractor.”6 Thus, the Court reasoned that “when a retail store hires an outside plumber to repair a leak in a bathroom on its premises or hires an outside electrician to install a new electrical line, the services of the plumber or electrician are not part of the store’s usual course of business.”7  But on the other hand, “when a clothing manufacturing company hires work-at-home seamstresses to make dresses from cloth and patterns supplied by the company that will thereafter be sold by the company” or “when a bakery hires cake decorators to work on a regular basis on its custom-designed cakes,” the “workers are part of the hiring entity’s usual business operation and the hiring business can reasonably be viewed as having suffered or permitted the workers to provide services as employees.”8

With respect to Part C of the test, the Court explained that the “hiring entity must prove that the worker is customarily engaged in an independently established trade, occupation, or business.”9  This inquiry may turn on whether an individual has taken “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.”10

Applying the ABC test to the claims of Dynamex’s drivers, the Supreme Court concluded that there was sufficient commonality of interest under Parts B and C of the test to justify certifying a class of the drivers for violations of the wage order because (1) Dynamex is a delivery company and the question whether the work performed by the delivery drivers within the certified class is outside the usual course of its business is clearly amenable to determination on a class basis and (2) the class of drivers certified by the trial court was limited to drivers who performed delivery services only for Dynamex.11

III. Assessing the Effect of Dynamex on Public Employees

A. Dynamex Applies (for Now) Only to Obligations Flowing from the Wage Orders

The consequences of Dynamex are far-reaching.  Although the decision involved only how to determine a worker’s employment status under a particular wage order governing the transportation industry, the Court made clear that the ABC test would apply to “each of the other 15 wage orders governing other industries in California” that use the same “suffer or permit to work” definition of “employ” as the transportation wage order at issue.12

Critically, however, Dynamex’s adoption of an “exceptionally broad suffer or permit to work standard”13 does not apply to all California workers.  The Court stressed that its decision applies only to “workers who fall within the reach of the wage orders”14 and “express[ed] no view” on whether the “suffer or permit to work” standard applies to claims based on statutory violations not premised on wage order violations.15

Accordingly, the ABC test articulated in Dynamex does not—at least at this juncture—apply to any claims brought against employers for their “alleged failure to comply with statutory obligations that do not derive directly from” the wage orders.16 Moreover, even if the standard announced in Dynamex is ultimately extended beyond the wage orders to the Labor Code, in general “provisions of the Labor Code apply only to employees in the private sector unless they are specifically made applicable to public employees.”17

In light of the foregoing, Dynamex does not constitute a material change for public employers to the extent that their workers are outside the scope of the wage orders.  That said, courts may well ultimately extend the Dynamex test to other worker classification contexts that would have profound consequences for public employers—for example, “the responsibility of paying federal Social Security and payroll taxes, unemployment insurance taxes and state employment taxes, providing worker’s compensation insurance,”18 and making retirement contributions under the Public Employees’ Retirement Law.  Currently, worker classification decisions for these obligations are reviewed under the multi-factor common law standard, and Dynamex does not alter this test.  But broad language in Dynamex characterizing “misclassification of workers as independent contractors rather than employers” as a “very serious problem” “depriving . . . millions of workers of the labor law protections to which they are entitled”19 suggests that the Court sees misclassification as a broader problem stretching beyond the wage orders.  Public employers seeking to mitigate against the risk of Dynamex’s expansion to other contexts should therefore consider reviewing their classification decisions for all independent contractors under the ABC test.

B. Dynamex’s Immediate Impact on Public Employees Depends on the Applicability of the IWC’s Wage Orders

Although Dynamex may ultimately be extended to other employment contexts, the crucial inquiry for public employers in the wake of Dynamex focuses on the wage orders.  “Today 18 wage orders are in effect, 16 covering specific industries and occupations, one covering all employees not covered by an industry or occupation order, and a general minimum wage order amending all others to conform to the amount of the minimum wage currently set by statute.”20  Because the vast majority of these wage orders specifically exempt “employees directly employed by the State or any political subdivisions thereof, including any city, county, or special district,”21 the ABC test announced in Dynamex will carry fewer consequences for public employers than for private employers.22

But that does not mean that public employers should ignore Dynamex.  To the contrary, public employers should revisit their classification decisions and reclassify any of the following workers who do not meet all three prongs of Dynamex’s ABC test:  (1) workers who are paid less than minimum wage; (2) commercial drivers; and (3) certain household and agricultural workers.  At the same time, charter cities, charter counties, and general law counties may decline to reclassify workers even if they fail the ABC test on the theory that application of the wage orders to those entities would violate the home rule doctrine.

1. Public Entities Should Immediately Review Their Classifications of Workers Who Receive Less than Minimum Wage

Although 14 of the 17 wage orders expressly exempt public employees, they only do so for certain provisions.  By way of example, the exemption in the manufacturing wage order provides as follows:  “Except as provided in Sections 1 [‘Applicability of Order’], 2 [‘Definitions’], 4 [‘Minimum Wages’], 10 [‘Meals and Lodging’], and 20 [‘Penalties’], the provisions of this order shall not apply to any employees directly employed by the State or any political subdivision thereof, including any city, county, or special district.”23

Thus, courts have held that the obligations in the wage orders regarding minimum wages, the circumstances under which meals or lodging may be credited against minimum wage requirements, and any applicable penalties for violating those provisions still apply “to all employees in the occupations described therein, including employees directly employed by the state or any political subdivision of the state.”24

Accordingly, now that Dynamex has made clear that all workers are employees for purposes of the wage orders unless employers satisfy all three prongs of the ABC test, public employers should review their classification decisions as to any worker paid less than minimum wage.

2. Public Entities Should Immediately Review Their Classification of Commercial Drivers

Unlike the other wage orders that expressly exempt public employees from their non-minimum wage provisions, the transportation wage order at issue in Dynamex does not exempt “commercial drivers employed by governmental entities” from the meal and rest break requirements set forth in sections 11 and 12 of the wage order.25  Thus, in Jernagin v. City of Los Angeles (Cal. App. May 29, 2013) 2013 WL 2336342, the Court of Appeal applied the meal break requirements from section 11 to the City of Los Angeles’s sanitation-truck drivers.26

Notably, however, sections 11 and 12 still expressly exempt from their meal and rest break requirements “public transit bus driver[s] covered by a valid collective bargaining agreement if the agreement expressly provides for meal [and rest] periods for those employees, final and binding arbitration of disputes concerning application of its meal [and rest] period provisions, premium wage rates for all overtime hours worked, and regular hourly rate of pay of not less than 30 percent more than the State minimum wage rate.”27

In Flowers v. Los Angeles County Metropolitan Transportation Authority (2015) 243 Cal.App.4th 66, the plaintiff— a former bus driver for the Los Angeles County Metropolitan Transportation Authority whose employment was governed by a collective bargaining agreement—filed a class action against the MTA for (among other things) failure to provide rest periods or to pay premiums for missed rest periods under the Labor Code and the transportation wage order.28  The plaintiff argued that he did not fall within the section 12(C) exemption because his collective bargaining agreement defined “all overtime hours worked” differently than the Labor Code and thus did not provide for premium wage rates for all overtime hours worked.  But the court rejected this argument, concluding that the MTA was “only required to pay a premium for overtime worked as defined in the parties’ [collective bargaining agreement],” and therefore the rest period requirements set forth in section 12 of the wage order did not apply to the plaintiff and the employees he sought to represent.29

In light of these decisions, and the fact that Dynamex changed the standard for assessing employment status under the transportation wage order, public employers should review their classifications of commercial drivers to make sure that any drivers who do not qualify for the exemptions set forth in sections 11(F) and 12(C) are properly classified.

3. Public Entities Should Immediately Review Their Classification of Workers in Household and Agricultural Occupations

Although most of the wage orders expressly exempt public employers from their non-minimum wage requirements, two occupation-specific wage orders—one governing agricultural occupations and the other governing household occupations (see Cal. Code Regs., tit. 8, § 11140 [Agricultural Operations]; id., § 11150 [Household Occupations])—do not exempt public employees from their scope at all.30

As such, public entities that hire workers for either household occupations31 or agricultural occupations32 should take particular heed of the Court’s Dynamex decision and should consider classifying those workers as employees rather than independent contractors unless they satisfy each of the three prongs of the ABC test announced in Dynamex.

By way of example, public entities that provide in-home support services under the In-Home Support Services Act (Welf. & Inst. Code, § 12300 et seq.)—which requires that “each county shall act as, or establish, an employer for in-home supportive service providers” for purposes of collective bargaining and other applicable state or federal laws (id., § 12302.25, subd. (a))—should make this assessment as soon as possible if they have not yet already.  Even before Dynamex, lower courts held that public entities providing these services are subject to the Household Occupations wage order.33

In Guerrero v. Superior Court (2013) 213 Cal.App.4th 912—which the Supreme Court cited with approval in Dynamex34—the Court of Appeal held that the trial court erred in determining as a matter of law that the County of Sonoma and the Sonoma County In-Home Support Services Public Authority (“Public Authority”) were not employers of in-home support services providers for purposes of this wage order.35  The County and Public Authority argued that “they neither suffered nor permitted [the plaintiff] to work because they had no power to prevent her from working and were prohibited from interfering with [the in-home program services recipient’s] ability to hire, fire and supervise [the plaintiff].”36  But the Court of Appeal rejected this argument, concluding that the County and Public Authority “exercised effective control over the wages of providers in numerous ways,” “exercise[d] effective control over the eligibility determination and the authorization of particular services for recipients,” and should have “know[n] that particular providers are rendering services to recipients under the program.”37

The Guerrero court also rejected the trial court’s reasoning that the wage order did “not apply to public agencies and political subdivisions because it expressly discusses only private household employment.”38 This reasoning, the Court of Appeal explained, “misconstrues the wage order by ignoring the joint employer doctrine and assuming a provider cannot render services to a private householder as the employee of both the householder and the public agency for purposes of the wage and hour law.”39

As Guerrero indicates, public employers with workers who are subject to the household occupation or agricultural occupation wage orders should take care to review their classifications under the new ABC test from Dynamex.

4. Charter Cities and Both Charter and General Law Counties May Have Grounds to Resist Reclassification under the Home Rule Doctrine

Although public employers should consider reclassifying workers subject to the wage orders as discussed above, charter cities,40 charter counties,41 and general law counties42 may have grounds to resist reclassifying workers who might otherwise fall within one of the wage orders on the theory that applying the wage orders to those entities violates the home rule doctrine.

In Dimon v. County of Los Angeles (2008) 166 Cal.App.4th 1276, a deputy probation officer employed by the County of Los Angeles (a charter county) alleged that the County violated various provisions of the Labor Code, as well as wage orders promulgated by the IWC, by failing to provide deputy probation officers with meal periods and by failing to pay for missed meal periods.43  The Court of Appeal affirmed dismissal of the suit, holding that “the County has exclusive authority, as a charter county, to provide for the compensation and conditions of employment of its employees, and has done so with respect to probation officers through a collective bargaining agreement adopted by resolution.”44

After holding that “applying the [Labor Code] statutes to the County would impinge to more than a limited extent on its authority,” the Court of Appeal considered whether the same conclusion applied to the IWC’s wage orders.45  The parties had disputed which wage order applied to the plaintiff, but the court declined to “decide which wage order applies to deputy probation officers” because at “[e]ven if we were to conclude that Wage Order 17-2001 [governing Miscellaneous Employees] controlled, the result would be the same:  the home rule doctrine would preclude its application because the IWC, in promulgating wage orders, engages in a quasi-legislative endeavor so that its orders are inapplicable if, as here, they impermissibly regulate employment compensation, a matter within the County’s exclusive constitutional purview.”46

Similarly, in Curcini v. County of Alameda (2008) 164 Cal.App.4th 629, the Court of Appeal affirmed the dismissal of prison chaplains’ claims against the County of Alameda (a charter county) for violating the Labor Code’s provisions governing overtime (§§ 510, 1194) and meal and rest breaks (§§ 226.7, 512) because the provisions at issue addressed “matters of compensation within the County’s exclusive constitutional purview” under the home rule doctrine.47

Finally, in In re Work Uniform Cases (2005) 133 Cal.App.4th 328, the Court of Appeal affirmed the dismissal of claims brought under Labor Code section 2802 for reimbursement of uniform expenses against two general law counties (Tuolumne and Yolo), two charter counties (Fresno and Santa Clara), and a charter city (Fresno) where the general law counties had negotiated uniform allowances with workers and the other entities’ charters all established that the government bodies of those entities provide for the compensation of all public employees.48  Because “payment to employees for work uniforms is part of the employees’ compensation” and the “issue of public employee wages and terms of compensation are indisputably matters of local concern,”49 the court concluded that constitutional principles of home rule embodied in article XI, section 1 (for all counties) and article XI, sections 4 & 5 (for charter counties and charter cities) required dismissal:  “[E]ven if section 2802 applies to claims for the costs of work uniforms, counties and cities are not subject to that requirement by virtue of the constitutional powers granted to them to manage their own affairs and set the compensation of their own employees.”50

By contrast, in Jernagin v. City of Los Angeles (Cal. App. May 29, 2013) 2013 WL 2336342, the Court of Appeal concluded—in an unpublished decision—that the meal break requirements in Labor Code sections 226.7 and 512, as well as the transportation industry wage order, applied to the City of Los Angeles’s sanitation truck drivers despite the City’s argument that this violated the home rule doctrine.  The court distinguished Dimon and Curcini on the ground that unlike sanitation truck drivers, the probation officers and prison chaplains at issue in those cases do not operate “heavy equipment on the state’s public highways during long workdays,” and thus their “meal and rest breaks would have no apparent impact on matters of statewide public safety.”51  And the court distinguished In re Work Uniform Cases on the ground that “the Labor Code provision sought to be enforced in that case was not a worker safety statute affecting a statewide interest in public safety.”52

Because it is unpublished, Jernagin has not been cited in any subsequent California state court decision.53  But in Berndt v. City of Los Angeles (9th Cir. 2015) 621 F. App’x 368, the Ninth Circuit refused to follow Jernagin in an action asserting that the City’s practice of compensating its law enforcement officers’ gap time with compensatory time off violated state law.54  The court held that the home rule doctrine precluded the officers’ state-law claims and distinguished Jernagin on the ground that it “did not concern municipal law enforcement employees or the use of [compensatory time off], and so does not support application of the statewide concern exception here.”55

Accordingly, these decisions may allow charter cities, charter counties, and general law counties to resist reclassification of certain workers based on home rule principles.  But to minimize risk, public entities wishing to rely on the home rule doctrine to avoid reclassifying certain workers should still review whether those workers’ duties or the applicable wage orders implicate a statewide interest in public safety like the one identified in Jernagin.

IV. Conclusion

In sum, the Supreme Court’s decision in Dynamex promises to have a substantial impact on employers who are subject to the IWC’s wage orders.  Because public employers are exempt from most of the wage orders, however, Dynamex’s immediate effect on public entities stands to be far less pronounced than for private employers.

But public employers should nevertheless immediately consult counsel to determine whether they need to reclassify, in accordance with the ABC test announced in Dynamex, any workers who make less than minimum wage, serve as commercial drivers, or work in household or agricultural occupations.  And public employers seeking to guard against the risk that the courts ultimately extend Dynamex to other contexts outside the wage orders (e.g., workers compensation, eligibility for PERS benefits) should also consider reviewing their other worker classifications in light of the ABC test.

For further information, please contact:

Teresa Stricker

Teresa Stricker
tstricker@publiclawgroup.com
415.848.7242

Randy Riddle

(1) (Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903 (S222732), slip opinion (“slip opn.”) at pp. 44-45.)
(2) (Id. at pp. 5-6, 47-65.)
(3) (Id. at p. 64 [emphasis in original].)
(4) (Id. at p. 69, fn. 27.)
(5) (Ibid.)
(6) (Id. at p. 70.)
(7) (Ibid.)
(8) (Ibid.)
(9) (Id. at p. 75.)
(10) (Id. at p. 74.)
(11) (Id. at p. 80.)
(12) (See id. at p. 21, fn. 9 [“the definitions of ‘employ,’ ‘employee,’ and ‘employer’ that appear in subdivision 2 of the transportation industry wage order are also included in the definitions set forth in each of the other 15 wage orders governing other industries in California, although several of the other industry wage orders include additional definitions of the term ‘employee’”]; see also id. at p. 37 [noting that the “suffer or permit” language was embodied in the definition of “employ” in “the wage order at issue in this case and in all other wage orders”].)
(13) (Id. at p. 58.)
(14) (Id. at p. 59; see id. at p. 3 [ asking “what standard applies, under California law, in determining whether workers should be classified as employees or as independent contractors for purposes of California wage orders, which impose obligations relating to the minimum wages, maximum hours, and a limited number of very basic working conditions (such as minimally required meal and rest breaks) of California employees”], original italics.)
(15) (Id. at p. 45; see also id. at p. 6, fn. 5.)
(16) (Id. at p. 45.)
(17) (Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 330, quotations omitted [emphasis added].)
(18) (Dynamex, supra, slip opn. at p. 1.)
(19) (Id. at p. 2; see also id. at p. 1 [“the question whether an individual worker should properly be classified as an employee or, instead, as an independent contractor has considerable significance for workers, businesses, and the public generally”].)
(20) (Martinez v. Combs (2010) 49 Cal.4th 35, 57, fns. omitted.)
(21) In addition to the transportation wage order at issue in Dynamex, express exemptions for political subdivisions are contained in wage orders concerning Manufacturing (Cal. Code Regs., tit. 8, § 11010, subd. 1(B)); Personal Service Industry (id., § 11020, subd. 1(B)); Canning, Freezing and Preserving Industry (id., § 11030, subd. 1(B)); Professional, Technical, Clerical, Mechanical, and Similar Occupations (id., § 11040, subd. 1(B)); Public Housekeeping Industry (id., § 11050, subd. 1(C)); Laundry, Linen Supply, Dry Cleaning and Dyeing Industry (id., § 11060, subd. 1(B)); Mercantile Industry (id., § 11070, subd. 1(B)); Industries Handling Products After Harvest (id., § 11080, subd. 1(B)); Amusement and Recreation Industry (id., § 11100, subd. 1(C)); Broadcasting Industry (id., § 11110, subd. 1(B)); Motion Picture Industry (id., § 11120, subd. 1(B)); Industries Preparing Agricultural Products for Market, on the Farm (id., § 11130, subd. 1(B)); and Certain On–Site Occupations in the Construction, Drilling, Logging, and Mining Industries (id., § 11160, subd. 1(B)).
(22) Although a third catch-all wage order—governing miscellaneous employees who are not otherwise covered by specific wage orders (see Cal. Code Regs., tit. 8, § 11170 [Miscellaneous Employees])—does not expressly exempt public employees, it has been interpreted to exempt public employees.  (See California Correctional Peace Officers’ Ass’n v. State (2010) 188 Cal.App.4th 646, 655 [holding that the miscellaneous employees wage order “does not apply” to public employees because it applies “‘to all employees not specifically exempted’ in the wage orders in effect in 1997” and “public employees were exempt from all but two of the wage orders in effect in 1997”], quoting and italicizing Cal. Code Regs, tit. 8, § 11170.)
(23) (Cal. Code Regs., tit. 8, § 11010, subd. 1(B).)
(24) (Sheppard v. North Orange County Regional Occupational Program (2010) 191 Cal.App.4th 289, 300-301 [holding that Wage Order No. 4’s minimum wage provisions applied to an instructor of a regional occupational program established by a school district]; Cole v. East Bay Municipal Utility District (N.D. Cal. Jun 1, 2016) 2016 WL 3078856, at *2 [holding that public employees could sue public entity employer for minimum wage violations]; see also Cal. Code Regs., tit. 8, § 11000, subds. 1, 3, & 5 [amending the IWC’s industry and occupation orders to eliminate certain exemptions from the minimum wage].)
(25) (IWC Wage Order No. 9-2001 (“Wage Order No. 9”), subd. 1(B) [“Except as provided in Sections 1, 2, 4, 10, and 20, and with regard to commercial drivers, Sections 11 [Meal Breaks] and 12 [Rest Breaks], the provisions of this order shall not apply to any employees directly employed by the State or any political subdivision thereof, including any city, county, or special district.  The application of Sections 11 and 12 for commercial drivers employed by governmental entities shall become effective July 1, 2004”], available at https://www.dir.ca.gov/IWC/IWCArticle9.pdf.)  Curiously, although several courts have applied this more recent version of the transportation wage order (see Flowers v. Los Angeles County Metropolitan Transportation Authority (2015) 243 Cal.App.4th 66; Jernagin, supra, 2013 WL 2336342), it does not appear in the California Code of Regulations on Westlaw.  (Compare Wage Order No. 9, subds. 1(B), 2(C), 2(L), 11(F) & 12(C), with Cal. Code Regs., tit. 8, § 11090, subds. 1(B), 2(C), 2(L), 11(F) & 12.)
(26) (Jernagin, supra, 2013 WL 2336342, at p. *11; see also Flowers, supra, 243 Cal.App.4th at p. 76 [noting that a 2004 amendment to this wage order “made meal and rest period requirements in sections 11 and 12 of the wage order applicable to public transit drivers”]; see also https://www.dir.ca.gov/iwc/wageorderindustriesprior.htm [summarizing history of each wage order and including a Summary and Statement as to the Basis for the 2004 amendment to Wage Order No. 9].)
(27) (Wage Order No. 9, subds. 11(F) & 12(C).)
(28) (Flowers, supra, 243 Cal.App.4th at p. 72.)
(29) (Id. at pp. 84-85.)
(30) (See Guerrero v. Superior Court (2013) 213 Cal.App.4th 912, 954-955 & fn. 28 [concluding that the plain language of the wage order governing Household Occupations, “when compared with that of the other industrial and occupation wage orders, demonstrates the IWC did not intend to exempt public agencies or political subdivisions generally from its provisions applicable to household occupations”].)
(31) The wage order governing household occupations defines “household occupations” as “all services related to the care of persons or maintenance of a private household or its premises by an employee of a private householder.  Said occupations shall include, but not be limited to, the following: butlers, chauffeurs, companions, cooks, day workers, gardeners, graduate nurses, grooms, house cleaners, housekeepers, maids, practical nurses, tutors, valets, and other similar occupations.”  (Cal. Code Regs., tit. 8, § 11150, subds. 1, 2(I).)
(32) The wage order governing agricultural occupations defines “employed in an agricultural occupation” as occupations involving the “preparation, care, and treatment of farm land, pipeline, or ditches, including leveling for agricultural purposes, plowing, discing, and fertilizing the soil”; the “sowing and planting of any agricultural or horticultural commodity”; the “care of any agricultural or horticultural commodity”; the “harvesting of any agricultural or horticultural commodity, including but not limited to, picking, cutting, threshing, mowing, knocking off, field chopping, bunching, baling, balling, field packing, and placing in field containers or in the vehicle in which the commodity will be hauled, and transportation on the farm or to a place of first processing or distribution”; the “assembly and storage of any agricultural or horticultural commodity, including but not limited to, loading, road siding, banking, stacking, binding, and piling”; and the “raising, feeding and management of livestock, fur bearing animals, poultry, fish, mollusks, and insects, including but not limited to herding, housing, hatching, milking, shearing, handling eggs, and extracting honey”; the “harvesting of fish, as defined by Section 45 of the Fish and Game Code, for commercial sale”; and “conservation, improvement or maintenance of such farm and its tools and equipment.”  (Cal. Code Regs., tit. 8, § 11140, subds. 1, 2(D).)
(33) (See Guerrero, supra, 213 Cal.App.4th 912.)
(34) (Dynamex, supra, slip opn. at p. 52, citing Guerrero, supra, 213 Cal.App.4th at pp. 945-952.)
(35) (See Guerrero, supra, 213 Cal.App.4th at p. 951.)
(36) (Id. at p. 949.)
(37) (Id. at pp. 949-950.)
(38) (Id. at p. 955.)
(39) (Ibid.)
(40) (See Cal. Const., art. XI, § 5, subds. (a) & (b) [providing that charter cities have “plenary authority” with regard to “the compensation, method of appointment, qualifications, tenure of office and removal of such deputies, clerks and other employees” and that city charters “with respect to municipal affairs shall supersede all laws inconsistent”].)
(41) (See Cal. Const., art. XI, § 4, subds. (f) & (g) [stating that county charters shall provide for “[t]he fixing and regulation by governing bodies, by ordinance, of the . . . duties, qualifications, and compensation” of county employees and providing that a duly adopted county charter supersedes general laws adopted by the Legislature that concern counties].)
(42) (See Cal. Const., art. XI, § 1, subd. (b) [“The governing body [of each county in the State] shall provide for the number, compensation, tenure, and appointment of employees”].)
(43) (Dimon, supra, 166 Cal.App.4th at p. 1279.)
(44) (Ibid.)
(45) (Id. at p. 1290.)
(46) (Ibid., citation omitted.)
(47) (Curcini, supra, 164 Cal.App.4th at p. 645 [“the provisions of Labor Code section 512 prescribing meal periods, and section 226.7 providing a premium wage as compensation for missed meal and rest periods, are matters of compensation within the County’s exclusive constitutional purview”]; see also id. at p. 643 [“sections 510 and 1194 relating to overtime pay address matters of ‘compensation’ within the County’s exclusive constitutional purview”].)
(48) (In re Work Uniform Cases, supra, 133 Cal.App.4th at p. 335.)
(49) (Id. at p. 342.)
(50) (Id. at pp. 335, 345.)
(51) (Jernagin, supra, 2013 WL 2336342, at pp. *5, *7.)
(52) (Id. at p. *5.)
(53) (See Cal. Rules of Court, rule 8.1115(a) [providing that except in specific limited instances, “an opinion of the California Court of Appeal . . . that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action”].)
(54) (Berndt, supra, 621 F. App’x at p. 370.)
(55) (Ibid.)

2018-08-10T06:53:09-07:00June 11th, 2018|