• Dean Royer

September 2021 employment law decisions

The Borello common law test applies to failure to reimburse expenses claims.

September 30, 2021, Fifth District Court of Appeal, Veronica Becerra v. The McClatchy Company: Becerra filed a class action on behalf of newspaper home delivery carriers alleging The McClatchy Company failed to pay the carriers’ mileage expenses as required by Labor Code section 2802. The trial court concluded that the carriers were properly classified as independent contractors. The court of appeal determined that whether the carriers were independent contractors for purposes of Labor Code section 2802 is governed by the Borello common law test (rather than the Dynamex ABC test) and reversed so that the trial court could apply the Borello test.


The Dynamex ABC test applies to minimum wage and overtime claims by app-based drivers that pre-date Proposition 22.

September 20, 2021, Ninth Circuit Court of Appeals, Raef Lawson v. Grubhub, Inc.: Lawson sued Grubhub arguing that he had been misclassified as an independent contractor and, as a result, Grubhub failed to pay minimum wages and overtime and to reimburse expenses. The trial court concluded that Lawson was properly classified as an independent contractor under the Borello common law test. The Ninth Circuit determined that the Dynamex ABC test applied to the minimum wage and overtime claims and that Proposition 22 (which makes app-based drivers independent contractors) did not preclude application of the ABC test because the proposition does not apply retroactively.


A DFEH complaint need not include the full correct legal name of the employer.

September 17, 2021, Second District Court of Appeal, Gloria Guzman v. NBA Automotive, Inc.: Guzman filed a timely complaint with the Department of Fair Employment and Housing after her employer, NBA Automotive, Inc. dba Hooman Chevrolet of Culver City terminated her employment. The DFEH issued Guzman a right-to-sue letter, and Guzman filed a civil case that went to trial at which the jury found in favor of Guzman. NBA Automotive appealed contending that Guzman failed to exhaust her administrative remedies because her DFEH complaint named Hooman Enterprises, Inc. dba Hooman Chevrolet as the employer. The court of appeal affirmed on grounds the DFEH complaint sufficiently identified the employer because it included a fictitious business name that was virtually identical to the legal name (Hooman Chevrolet vs. Hooman Chevrolet of Culver City) and listed the address of Hooman Chevrolet in Culver City and named the owner.


Reversal of summary judgment based on erroneous exclusion of ageist comment.

September 10, 2021, Second District Court of Appeal, Linda Jorgenson v. Loyola Marymount University: Jorgenson sue Loyola Marymount University for retaliation and age and gender discrimination. The trial court dismissed the case (summary judgment) after excluding evidence that a University employee rejected a job candidate because she “wanted someone younger.” The court of appeal reversed on grounds the ageist statement was erroneously excluded based on a prior decision that age-based remarks not made directly in the context of an employment decision or uttered by a nondecision maker may be relevant, circumstantial evidence of discrimination.

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