For purposes of the Labor Code’s sections on wage and hour protections for employees, the same “control plus” test applies as in the area of workers compensation and unemployment insurance.  It is the test set out in G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 in which the primary factor is the employer’s control over the employee’s work, enhanced by a consideration of several other factors outlined in the Restatement of Agency.  Under that test, taxi drivers are employees.  Most importantly, the employer could fire them for misconduct, a factor of great weight in determining control.  The secondary factors do not detract from the conclusion that the taxi driver is an employee, as this court found for workers compensation purposes in Yellow Cab Cooperative, Inc. v. Workers’ Comp. Appeals Bd. (1991) 226 Cal.App.3d 1288.

California Court of Appeal, First District, Division One (Dondero, J.; Banke, J., concurring); October 5, 2017; 2017 WL 4416856