Under the ABC test adopted in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903 as the test for distinguishing between employees and independent contractors for purposes of IWC wage orders, the defendant in this case failed to meet its initial burden in moving for summary judgment on plaintiff’s claims for violation of the applicable wage order. The C prong of the ABC test is not satisfied by proof that the worker is allowed or permitted to seek work from other customers or to seek independent employment.  Rather, the hirer must establish that the worker is actually engaged in employment independent of the employer.  Here, defendant did not present evidence proving that point as it had relied on the Borello test of employment.  Also, there was good reason to doubt the defendant could satisfy the C prong of the test.  It rented taxicab permits to drivers like plaintiff.  Under the municipal restrictions of taxis, a driver could not switch companies without obtaining a new driver’s license from the city, thus effectively preventing independent taxi driving.

California Court of Appeal, Fourth District, Division 1 (Dato, J.); October 22, 2018 (partial publication; modified November 13, 2018); 28 Cal. App. 5th 558