When employees of a package delivery service reformed into a new company and were deemed "independent contractors," they sued as a class contending various Labor Code violations pertaining to overtime pay and other "employee" mandates, as well as unfair labor practices.
This unpublished opinion is a good checklist for determining whether workers are independent contractors or employees.
In 2002, Express Messenger - a regional overnight package delivery company operating from California - discontinued its system of using employee drivers to perform local pickup and delivery work in California and implemented a program designed to switch the majority of its employee drivers to independent contractor status.
Express Messenger hired Subcontracting Concepts, Inc. (SCI) to facilitate this change.
Drivers who elected to continue working with Express Messenger after the change entered into written independent contractor agreements with SCI to perform delivery services for Express Messenger. The drivers then bid on available routes and negotiated a route management fee with Express Messenger.
After citing the Supreme Court's ruling in Empire Star Mines Co. v. Cal. Emp. Com. (1946) 28 Cal.2d 33 - that "the most important factor is the right to control the manner and means of accomplishing the result desired" - the court ultimately ruled that the workers were indeed "independent contractors."
The decision refers to the standard factors to be considered - enumerated in a later Supreme Court decision - Tieberg v. Unemployment Ins. App. Bd. (1970) 2 Cal.3d 943 - including:
(a) whether or not the one performing services is engaged in a distinct occupation or business;
(b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision;
(c) the skill required in the particular occupation;
(d) whether the principal or the workman supplies the instrumentalities, tools and the place of work for the person doing the work;
(e) the length of time for which the services are to be performed;
(f) the method of payment, whether by the time or by the job;
(g) whether or not the work is a part of the regular business of the principal; and
(h) whether or not the parties believe they are creating the relationship of employer-employee.
The case is Cristler v. Express Messenger Service.
To read the full opinion,
→
CLICK HERE.
