Labor misclassification is a serious problem, costing the state over $7b annually in tax revenue and supplemental public services. Through “misclassification scheme[s]” such as “man in the middle,” employers try to avoid compliance with labor laws, avoid offering rest breaks, meal breaks, medical insurance, overtime pay, workers compensation insurance, unemployment insurance, or covering their fair share of employer taxes. Mejia v. Roussos Constr. Inc., Case No. C087709, 2022 WL 883845, at *6 (Cal. Ct. App. Mar. 25, 2022).
The firm is pleased to report that in a hard fought matter spanning eight years, after a trial, and after four years on appeal, the California Court of Appeal ruled that employers cannot escape misclassification liability simply by farming out their hiring process to a third party. On this question, the Court ruled in favor of Tong Robbins' clients, stating in plain language, “We agree with plaintiffs." Id. at *3.
In this decision, the Court of Appeal found that the ABC Test articulated originally in the matter of Dynamex, codified by the California Legislature in a law known as AB 5, see Cal. Lab. Code § 2775 – 2787, contains no “threshold hiring entity test” that would otherwise allow employers to escape liability for misclassifying their workers as independent contractors. Id. at *5.
In this way the Mejia Court now stands with a number of other decisions that have concluded bosses cannot defeat, undermine, or vitiate the ABC Test and thereby sidestep their lawful responsibilities as employers in the State of California. See People v. Uber Techs., Inc., 56 Cal. App. 5th 266, 307 (2020) (“We reject defendants’ invitation to import a threshold ‘hiring entity’ inquiry.”); see also Fleming v. Matco Tools Corp., No. 19-CV-00463-WHO, 2021 WL 673445, at *6 (N.D. Cal. Feb. 21, 2021) (“I agree with these courts and conclude that the term ‘hiring entity’ does not create a separate threshold inquiry into whether the ABC test applies at all to a particular entity.”); James v. Uber Techs. Inc., 338 F.R.D. 123, 131–32 (N.D. Cal. 2021).
The firm is pleased to report that in a hard fought matter spanning eight years, after a trial, and after four years on appeal, the California Court of Appeal ruled in favor of Tong Robbins’ clients, holding, in plain language, “We agree with plaintiffs.”
Much litigation is consumed in discovery, the formal process of asking questions and obtaining answers. Discovery responses are required to be code compliant, i.e. in accord with the provisions of the California Discovery Act. Failure to make code compliant responses is an easy way for a respondent to lose a discovery motion; and demanding code compliance is an easy way for the propounding party to win.
Sometimes after a plaintiff has lost a particularly acrimonious action the defendant will sue back, arguing that the original lawsuit was frivolous, brought in bad faith, malicious, or otherwise improper. In this second action, the former plaintiff (now defendant) will typically defend by arguing that she did nothing wrong; she was simply following her attorney’s advice. This is not the Nuremberg defense. It is known as the “advice of counsel” affirmative defense.
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