Mobilize the Message, LLC v. Bonta

Mobilize the Message, LLC v. Bonta

Opinion

 [*930]  ] For certain purposes, California classifies “a person providing labor or services for remuneration” as an employee unless the hiring entity satisfies the “ABC test” adopted in Dynamex Operations West, Inc. v. Superior Court, 4 Cal. 5th 903, 232 Cal. Rptr. 3d 1, 416 P.3d 1 (Cal. 2018). Cal. Lab. Code § 2775(b)(1). Section 2775 and Dynamex do not apply to several occupations. E.g., id. [**5]  § 2783. For workers in the exempt occupations, the multifactor test of S.G. Borello & Sons, Inc. v. Department of Industrial Relations, 769 P.2d 399 (Cal. 1989), governs in determining whether the worker is an employee or an independent contractor.

 [***998] 

Mobilize the Message, LLC, Moving Oxnard Forward, Inc., and Starr Coalition for Moving Oxnard Forward (collectively “Plaintiffs”) claim that this California law violates the First Amendment. They sued the California Attorney General and moved for a preliminary injunction to restrain him from classifying their doorknockers and signature gatherers according to the ABC test. The district court denied the motion. Plaintiffs appealed. We have jurisdiction under 28 U.S.C. § 1292(a)(1) and affirm.

“Few problems in the law have given greater variety of application and conflict in results than the cases arising in the borderland between what is clearly an employer-employee relationship and what is clearly one of independent, entrepreneurial dealing. This is true within the limited field of determining vicarious liability in tort. It becomes more so when the field is expanded to include all of the possible applications of the distinction.” Dynamex, 416 P.3d at 14 (quoting  [*931]  NLRB v. Hearst Publ'ns, Inc., 322 U.S. 111, 121, 64 S. Ct. 851, 88 L. Ed. 1170 (1944)).

“[A]t common law the problem of determining whether a worker should be classified as an employee or an independent contractor initially [**6]  arose in the tort context—in deciding whether the hirer of the worker should be held vicariously liable for an injury that resulted from the worker's actions.” Id. “[T]he question whether the hirer controlled the details of the worker's activities became the primary common law standard for determining whether a worker was considered to be an employee or an independent contractor.” Id. Before Borello, “California decisions generally invoked this common law ‘control of details’ standard beyond the tort context, even when deciding whether workers should be considered employees or independent contractors for purposes of the variety of 20th century social welfare legislation that had been enacted for the protection of employees.” Id. “In addition to relying upon the control of details test, … the pre-Borello decisions listed a number of ‘secondary’ factors that could properly be considered in determining whether a worker was an employee or an independent contractor.” Id. at 15.

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.