By Brian E. Koegle
Since the California Supreme Court issued a ruling in April 2018 (Dynamex Operations West, Inc. v. Superior Court), California businesses have been scrambling to decipher the scope and application of the court’s ruling. Flash forward to September 18, 2019, when Governor Gavin Newsom signed Assembly Bill 5, and a number of significant questions still linger over who can and who cannot be classified as an independent contractor.
As a brief refresher, the Dynamex ruling set forth a new “ABC test” to help inquiring employers understand when, at least according to the California Industrial Welfare Commission wage orders, a worker must be classified as an employee, rather than an independent contractor. As applied, the new test resulted in most independent contractor relationships now qualifying as employment relationships. As part of the “ABC Test,” a business has the burden of proof on all of the following factors in order to establish that the worker is an independent contractor:
A) That the worker was free from control and direction of the hirer in connection with the performance of the work, both under the contract for performance of such work and in fact; AND,
B) That the worker performed work that is outside the usual course of the hiring entity’s business; AND,
C) That the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.
If the business is unable to prove, through a preponderance of the evidence, that each of the following statements is true and accurate, the worker “defaults” back to an employee, and must be afforded all of the protections and privileges of the California wage orders and the California Labor Code (i.e., payment for overtime hours worked, provision of meal and rest periods, protections under the California Workers’ Compensation Act, and withholding of all required federal and state taxes from wages earned).
The California Legislature then codified the “ABC Test” into the California Labor Code as part of AB5. In the days leading up to the bill’s signing, a number of groups lobbied for, and were granted, exemptions from the application of the ABC Test. Among the lucky professions which were exempted are lawyers, doctors, hairstylists, barbers, commercial fisherman, marketing professionals, fine artists and payment processing agents. Notably absent from the list of exempted professions are all those workers performing services in the so-called “gig economy” – think Uber and Lyft drivers, GrubHub, Postmates, and all of our favorite convenience-based enterprises. The commonality or rational for granting some groups exemptions over others is not readily apparent (unless you follow the lobbying monies on either side of the issue). The effect of exemption means that workers under these selected professions are analyzed under the predecessor to Dynamex, known as the “Borello test”. By all accounts, it is much more difficult to establish independent contractor status under the ABC test over the Borello test.
Although the law has an effective date of January 1, 2020, the Legislature has assigned a retroactive effect, since the provisions of AB 5 were described as “an interpretation of existing law.” Consequently, business owners may become liable for violations in the past, dating back three (and possibly four) years.
To provide context for the risks businesses are facing, the following are among the damages available to workers who have been misclassified:
By Chamber Chair Stacy Miller
Now more than ever, our communities need good, hard-working and dedicated leaders. We need people who are willing to sacrifice their time and treasure for the good of others. We need these people to step up and serve but, first, we need them to be educated.
That is where the Oxnard Chamber of Commerce's Oxnard Leadership Program comes in. This dynamic, 10-session course provides participants with relevant and accurate information about key local and regional issues, one-on-one time with proven leaders, and a network of contacts to take those next steps.
Leadership is lifting a person's vision to high sights, the raising of a person's performance to a higher standard, the building of a personality beyond its normal limitations.
The program is open to anyone however applicants need to have a desire and dedication to enhance their leadership potential; increase their knowledge of the community; and be willing to commit their individual talents in future years toward the betterment of Oxnard. The gains are tremendous and include:
“Whether you are new to the area or have lived here for years, this important program can open new doors of opportunity,” commented Shelly Merrell, President & CEO for Integrated Fire Safety.
Shelly and I have each agreed to sponsor one participant as part of our commitment to future community leaders, I hope other leaders will join us in supporting this great program.
If you or someone you know would benefit from this program, I encourage to complete the online application available from the Chamber’s website: www.oxnardchamber.org/oxnard-leadership.html.
Let’s all help tomorrow’s leaders start learning today!
The 10-session program focuses on one topic per all-day session:
Session 1: Government
Learn about the governmental structure of our region and meet with city and county-level elected officials as they share their experience and vision for our community.
Session 2 - Public Safety
Spend the day alongside Oxnard Police Department, SWAT, and take a behind-the-scenes tour of Ventura County Jail.
Session 3 - Education
Visit our local high schools and universities to see how they’re serving our young people and preparing the next generation of leaders.
Session 4 - History, Parks & Museums
Discover how our community was founded and experience our regions rich culture and history.
Session 5 - International Trade & Defense
Guided tours of The Port of Hueneme and Naval Base Ventura County will display the impact these institutions have on a local, regional and international level.
Session 6 - Public Services
Go behind-the-scenes to see how our city services operate on a daily basis. Past visits include the Advanced Water Purification Facility, Del Norte Regional Recycling, and the Wastewater Treatment Plant.
Session 7 - Health & Human Services
Visits to St. John’s Regional Medical Center and FOOD Share highlight the ways our community is serving the needs of a growing population.
Session 8 - Commerce
Discover your leadership style, learn about workforce development & business ethics, and visit some of our local businesses. Past visits have included Haas Automation and a boat tour of Channel Islands Harbor.
Session 9 - Agriculture/Natural Resources
Meet with the Ventura County Agricultural Commissioner, tour a local farm, and experience an incredible agricultural testing facility located right here in our own backyard.
Session 10 - Energy
Learn about oil and gas production in Ventura County and its impact here and abroad, discover alternative energy sources, and hear from experts in the field.
How did our state legislators vote?
After the dust settles in Sacramento each year, the Chambers of Commerce Alliance of Ventura & Santa Barbara Counties compiles a vote record on pieces of legislation the organization either supported or opposed.
This is a sampling of bills that went all the way through the process to the Governor. While no vote record can tell the complete story of how legislators voted, it does give a pretty good indication of how they see business issues.
The vote record includes Assemblymembers and California Senators who represent chambers of commerce from Santa Maria Valley in the north and all of Ventura County.
The Chambers of Commerce Alliance of Ventura & Santa Barbara Counties was formed in 2003 to provide local chambers with a stronger voice in Sacramento and to address regional business issues.
A Message From Our CEO Nancy Lindholm
There is bad blood between the City of Oxnard and the County of Ventura. Both sides have dug in and are not budging. Oxnard's denial of a local coastal plan amendment on November 7 was the latest episode in an ongoing battle. The victim was the redevelopment of Fisherman's Wharf, which the Oxnard Chamber of Commerce has supported for more than three years.
The fight is over control. The County owns all of the property adjacent to the water of Channel Islands Harbor south of Channel Islands Boulevard. However, they need Oxnard to amend its local coastal plan to allow residential, mixed-use development at the old Fisherman's Wharf site. If Oxnard issues that amendment, it loses control over the project. So, we have a stalemate.
The fight over control has not only stalled, if not destroyed, the Fisherman's Wharf project, but it has delayed the rebuild of the Casa Sirena Marina Hotel on the Peninsula in the Harbor. There is also fighting over park maintenance and harbor patrol services.
This has gone on long enough! It's like watching a very nasty divorce unfold. The City and County should call in an arbitrator to seek compromises from both sides. This fight has been going on for three-and-a-half years.
The Chamber urges both parties to work toward reconciliation of who has approval and permitting authority in and around Channel Islands Harbor. The maintenance issues also need to be addressed.
It is likely one of the current Oxnard City Council members will be elected to District 5 of the Ventura County Board of Supervisors in 2020. How will that person deal with this conflict in their new role?
The Oxnard Chamber is making it easy for businesses to comply with California’s labor laws. No matter how many employees you have in California, your business is required by law to post a current California and Federal Employment Poster centrally in every place of business. Severe fines and penalties may be assessed if a business doesn’t display a current poster.
In partnership with the CalChamber, the Oxnard Chamber is taking pre-orders for the updated 2020 California and Federal Employment Poster. CalChamber is a trusted source for California and federal compliance products, with more than 125 years of experience helping California businesses do business.
The 2020 all-in-one poster includes mandatory updates to the Cal/OSHA notice for January 1, 2020, plus recommended updates to the USERRA notice and the CFRA notice.
Reminder: A scheduled minimum wage increase (to $12.00/hour) takes effect for employers with 25 or less employees; second increase (to $13.00/hour) takes effect for employers with 26 or more employees.
The all-in-one posting is available laminated or non-laminated and in your choice of English or Spanish. Posters must be displayed in a conspicuous place accessible to all employees. Employers must also display posters in each company location.
Orders placed by December 15 will be available for pick up at the Chamber around January 1. Orders placed after December 15 may take two weeks to process depending on current inventory.
Other labor law compliance resource materials are available as well. Need a supply of the required pamphlets and notices for new hires? We can provide those. A list of all products and pricing (discounts for members) is on the order form.
Please call the Oxnard Chamber at 805-983-6118 or click here to download the order form.