A couple of recent panel decisions demonstrate that the California Supreme Court’s new independent contractor/employer test in the 2018 Dynamex v. Superior Court decision does not apply to the California workers’ compensation system.
The WCAB issued three panel decisions in late 2018 that declined to rely upon the state Supreme Court’s decision in Dynamex. In the April 2018 Dynamex decision, the court adopted a three-part test known as the “ABC Test” to determine whether a worker is an independent contractor or an employee.
Those of us in the workers’ compensation system feared that this test would cause uncertainty by suddenly replacing the multi-factor test set forth by the 1989 state Supreme Court decision in S.G. Borello & Sons, Inc. v. Dept. of Ind. Relations 19 (1989) 48 Cal.3d 341 [54 Cal.Comp.Cases 80].
However, the most recent panel decisions clarify that Dynamex does not replace the Borello test, because the Dynamex factors only apply to wage orders in wage and hour disputes. The case that features the most detailed statement on this clarification is Perkins v. Don L. Knox, et al (2018 Cal. Wrk. Comp. P.D. LEXIS 490.) In that panel decision, WCAB Chairwoman Katherine Zalewski wrote, “Since the Dynamex court did not overturn the Borello standard for determining an applicant’s employment status with respect to the requirement of providing workers’ compensation benefits, and expressly limited the application of the ABC test to the determination of employment status with regard to wage orders, we conclude that the Borello standard applies here.” Fellow WCAB commissioners Jose Razo and Deidra Lowe concurred with Zalewski’s opinion.