Dynamex Operations W., Inc. v. Superior Court of L. A. Cnty.

hand, if

and did not do delivery work for other delivery businesses or for the drivers' own personal customers. In finding that the relevant common legal and factual issues relating to the proper classification of the drivers as employees or as independent contractors predominated over potential individual issues, the trial court's certification order relied upon the three alternative definitions of "employ" and "employer" set forth in the applicable wage order as discussed in this court's then-recently decided opinion in Martinez v. Combs (2010) 49 Cal.4th 35 , 64, 109 Cal.Rptr.3d 514 , 231 P.3d 259 ( Martinez ). As described more fully below, Martinez held that "[ ]o employ ... under the [wage order], has three alternative definitions. It means: (a) to exercise control over the wages, hours, or working conditions, or (b) to suffer or

class certification of that claim pursuant to a proper application of the Borello standard as further explicated in this court's

the trial court to reconsider its

Dynamex is a nationwide same-day courier and delivery service that operates a number of business centers in California. Dynamex offers on-demand, same-day pickup and delivery services to the public generally and also has a number of large business customers-including Office Depot and Home Depot-for whom it delivers purchased goods and picks up returns on a regular basis. Prior to 2004, Dynamex classified its California drivers as employees and compensated them pursuant to this state's wage and hour laws. In 2004, Dynamex converted all of its drivers to independent contractors after management concluded that such a conversion would generate economic savings for the company. Under the current policy, all drivers are treated as independent contractors and are required to provide their own vehicles and pay for all of their transportation expenses, including fuel, tolls, vehicle maintenance, and vehicle liability insurance, as well as all taxes and workers' compensation insurance.

Dynamex obtains its own customers and sets the rates to be charged to those customers for its delivery services. It also negotiates the amount to be paid to drivers on an individual basis. For drivers who are assigned to a dedicated fleet or scheduled route by Dynamex, drivers are paid either a flat fee or an amount based on a percentage of the delivery fee Dynamex receives from the customer. For those who deliver on-demand, drivers are generally paid either a percentage of the delivery fee paid by the customer on a per delivery basis or a flat fee basis per item delivered.

disclosed by the record, the trial court's certification order is nonetheless correct as a matter of law under a proper understanding of the suffer or permit to work standard and should be upheld.

Accordingly, we conclude that the judgment of the Court of Appeal should be affirmed.

W

e summarize the facts as set forth in the prior Court of Appeal opinions in this matter, supplemented by additional facts set forth in the record.

In January 2005, Charles Lee-the sole named plaintiff in the original complaint in the underlying action-entered into a written independent contractor agreement with Dynamex to provide delivery services for Dynamex.

In the absence of any special arrangement between Dynamex and a customer, drivers are generally free to choose the sequence in which they will make deliveries and the routes they will take, but are required to complete all assigned deliveries on the day of assignment. If a customer requests, however, drivers must comply with a customer's requirements regarding delivery times and sequence of stops.

Drivers hired by Dynamex are permitted to hire other persons to make deliveries assigned by Dynamex. Further, when they are not making pickups or deliveries for Dynamex, drivers are permitted to make deliveries for another delivery company, including the driver's own personal delivery business. Drivers are prohibited, however, from diverting any delivery order received through or on behalf of Dynamex to a competitive delivery service.

Drivers are ordinarily hired for an indefinite period of time but Dynamex retains the authority to terminate its agreement with any driver without cause, on three days' notice. And, as noted, Dynamex reserves the right, throughout the contract period, to control the number and nature of deliveries that it offers to its on-demand drivers.

issues. Because of its significance to our subsequent legal analysis, we discuss this aspect of the trial court's certification order in some detail.

The trial court began its discussion of the commonality requirement by observing that " '[ ]he ultimate question in every [purported class action] is whether, given an ascertainable class, the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants.' " The court noted that in examining whether common issues of law or fact predominate, a court must consider the legal theory on which plaintiffs' claim is based and the relevant facts that bear on that legal theory. The court explained that in this case all of plaintiffs' causes of action rest on the contention that Dynamex misclassified the drivers as independent contractors when they should have been classified as employees. Thus, the facts that are relevant to that legal claim necessarily relate to the appropriate legal standard or test that is applicable in determining whether a worker should be considered an employee or an independent contractor.

The court then explained that the parties disagreed as to the proper legal standard that is applicable in determining whether a worker is an employee or an independent contractor for purposes of plaintiffs' claims. Plaintiffs relied on this court's then-recent decision in Martinez , supra , 49 Cal.4th 35 , 109 Cal.Rptr.3d 514 , 231 P.3d 259 , maintaining that the standards or tests for employment set forth in Martinez are applicable in the present context, and that the standard for determining the employee or independent contractor question set forth in this court's decision in Borello , supra , 48 Cal.3d 341 , 256 Cal.Rptr. 543 , 769 P.2d 399 is not the

independent contractors and performed pickup or delivery service for Dynamex between April 15, 2001 and the date of the certification order, (2) who used their personally owned or leased vehicles weighing less than 26,000 pounds, and (3) who had returned questionnaires which the court deemed timely and complete. The proposed class explicitly excluded, however, drivers for any pay period in which the driver had provided services to Dynamex either as an employee or subcontractor of another person or entity or through the driver's own employees or subcontractors (except for substitute drivers who provided services during vacation, illness, or other time off). Also excluded were drivers who provided services concurrently for Dynamex and for another

knew or should have known about. [Citation.] Again, this is a matter that can be addressed by looking at Defendant's policy for entering into agreement with drivers. Defendant is only liable to those drivers with whom it entered into an agreement (i.e., knew were providing delivery services to Dynamex customers). This can be determined through records, and does not require individual analysis."

With regard to the common law employment relationship test referred to in Martinez , the trial court stated that this test refers to the multifactor standard

sole applicable standard. Dynamex, by contrast, took the position that the alternative definitions of

they are charged according to standardized rate tables. This may be a misrepresentation of defendants' evidence. Defendant['s supervising officer] testified that it tries to standardize the rates paid to on-demand drivers, however, drivers enter into different compensation arrangements. [Citations.] The opportunity for profit or loss depends on the nature of the agreement negotiated between Dynamex and the particular driver. Each arrangement

would have to be reviewed to determine the extent of the driver's opportunity for profit and loss."

With regard to the "who supplies instrumentalities" factor, the court stated: "Defendant admitted that the drivers had to provide the instrumentalities of their work and that this was a classwide policy. This factor is subject to common inquiry."

With regard to the duration of service factor, the court stated: "Defendants concede that the drivers are at-will. [This] [f]actor is also subject to common inquiry."

With regard to the method of payment factor, the court stated: "Defendants identify different payment scenarios: (a) percentage of the fee Dynamex charges its customer for each delivery performed; (b) flat rate per day, regardless of the number of packages delivered; (c) set amount per package, regardless of the size or type of package; (d ) flat fee to be available to provide delivery service regardless of whether the Driver's services are used; or (e) a combination of these payment types. [Citation.] These factors vary from driver to driver and raise individualized questions."

Finally, with regard to the "parties' belief regarding the nature of relationship" factor, the court noted that "this factor is given less weight by courts" and stated "[a]ll the drivers signed agreements stating that they were independent contractors. The drivers' belief could reasonably be demonstrated through this classwide agreement."

The court then summarized its conclusion with regard to the Borello standard: "Thus, most of the secondary factors are subject to common proof

Thereafter, the additional substantive provisions of the wage order that establish protections for workers or impose obligations on hiring entities relating to minimum wages, maximum hours, and specified basic working conditions (such as meal and rest breaks) are, by their terms, made applicable to "employees" or "employers." (See, e.g., Cal. Code Regs., tit. 8, § 11090, subds. 3 [Hours and Days of Work], 4 [Minimum Wages], 7 [Records], 11 [Meal Periods], 12 [Rest Periods].)

Subdivision 2 of the wage order does not contain a definition of the term "independent contractor," and the wage order contains no other provision that otherwise specifically addresses the potential distinction between workers who are employees covered by the terms of the wage order and workers who are independent contractors who are not entitled to the protections afforded by the wage order.

In June 2013, Dynamex filed a petition for writ of mandate in the Court of Appeal, challenging the trial court's denial of its motion to decertify the class. In response, plaintiffs, while disagreeing with Dynamex's claim that the trial court had erred, urged the

person to whom service is rendered has the right to control the manner and means of accomplishing the result desired." (See also Isenberg v. California Emp. Stab. Com. (1947) 30 Cal.2d 34 , 39, 180 P.2d 11 ( Isenberg ); Perguica v. Ind. Acc. Com. (1947) 29 Cal.2d 857 , 859-861, 179 P.2d 812 ( Perguica ); Empire Star Mines Co. v. Cal. Emp. Com. (1946) 28 Cal.2d 33 , 43, 168 P.2d 686 ( Empire Star Mines ).)

In addition to relying upon the control of details test, however, 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. The decisions declared that a hirer's right to discharge a worker "at will, without cause" constitutes " '[s]trong evidence in support of an employment relationship.' " ( Tieberg , supra , 2 Cal.3d at p. 949, 88 Cal.Rptr. 175 , 471 P.2d 975 , quoting Empire Star Mines , supra , 28 Cal.2d at p. 43, 168 P.2d 686 .) The decisions also pointed to the following additional factors, derived principally from section 220 of the Restatement Second of Agency: "(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." ( Empire Star Mines , supra , 28 Cal.2d at pp. 43-44, 168 P.2d 686 ; see also

As the above quotation suggests, at common law the problem of determining whether a worker should be classified as an employee or an independent contractor initially 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. In the vicarious liability context, the hirer's right to supervise and control the details of the worker's actions was reasonably viewed as crucial, because " '[ ]he extent to which the employer had a right to control [the details of the service] activities was ... highly relevant to the question whether the employer ought to be legally liable for them ....' " ( Borello , supra , 48 Cal.3d 341 , 350, 256 Cal.Rptr. 543 , 769 P.2d 399 .) For this reason, the 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.

A. Pre- Borello Decisions

Prior to this court's 1989 decision in Borello , supra , 48 Cal.3d 341 , 256 Cal.Rptr. 543 , 769 P.2d 399 , 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. Thus, for example, in Tieberg v. Unemployment Ins. App. Bd. (1970) 2 Cal.3d 943 , 946, 88 Cal.Rptr. 175 , 471 P.2d 975 ( Tieberg ), in determining whether a worker was an employee or independent contractor for purposes of California's unemployment insurance legislation,

concluded: "The Act intends comprehensive coverage of injuries in employment. It accomplishes this goal by defining 'employment' broadly in terms of 'service to an employer' and by including a general presumption that any person 'in service to another' is a covered 'employee.' " ( Borello , supra , 48 Cal.3d at p. 354, 256 Cal.Rptr. 543 , 769 P.2d 399 .) At the same time, the court acknowledged that "[ ]he express exclusion

of 'independent contractors' [from the workers' compensation act (see Lab. Code, §§ 3353, 3357 ) ] is purposeful ... and has a limited but important function. It recognizes those situations where the Act's goals are best served by imposing the risk of 'no-fault' work injuries directly on the

California and out-of-state cases in order to determine which classification (employee or independent contractor) best effectuates the underlying legislative intent and objective of the statutory scheme at issue.

considerations may often

Martinez , supra , 49 Cal.4th at p. 50, 109 Cal.Rptr.3d 514 , 231 P.3d 259 .) The court noted that although section 1194 derived from legislation enacted in 1913 as part of the act that created the Industrial Welfare Commission (hereafter IWC), this court had considered how employment should be defined in actions under section 1194 in only one earlier case. The court further observed that although the phrases used in the applicable IWC wage order to define "employ" and "employer" dated from 1916 and 1947, "the courts of this state have never considered their meaning or scope." ( Id. at p. 50, 109 Cal.Rptr.3d 514 , 231 P.3d 259 .)

In addressing these largely unexplored issues, the Martinez court turned initially to the language and legislative history of section 1194. The court noted that section 1194, by its terms, does not define the employment relationship or identify the entities who are liable under the statute for unpaid wages. After an extensive review of the statute's legislative history, however, the court concluded that "[a]n examination of section 1194 in its statutory and historical context shows unmistakably that the Legislature intended the IWC's wage orders to define the employment relationship in actions under the statute." ( Martinez , supra , 49 Cal.4th at p. 52, 109 Cal.Rptr.3d 514 , 231 P.3d 259 ; see id. at pp. 53-57, 109 Cal.Rptr.3d 514 , 231 P.3d 259 .)

and insect prevention, payment, [and ] right to deal with buyers ... are controlled by [Borello].' [Citation.]" ( Ibid ., fns. omitted.)

Further, the court observed that "contrary to the growers' assertions, the cucumber harvest involves simple manual labor which can be performed in only one correct way. Harvest and plant-care methods can be learned quickly. While the work requires stamina and patience, it involves no peculiar skill beyond that expected of any employee. [Citations.] It is the simplicity of the work, not the harvesters' superior expertise, which makes detailed supervision and discipline unnecessary. Diligence and quality control are achieved by the payment system, essentially a variation of the piecework formula familiar to agricultural employment." ( Borello , supra , 48 Cal.3d at pp. 356-357, 256 Cal.Rptr. 543 , 769 P.2d 399 .)

Thus, with respect to the control of details factor, the court concluded: "Under these

( Ibid . ) The court nonetheless made three observations about this language. First, the court noted that because the IWC's delegated authority has always been over wages, hours, and working conditions, it made sense to bring within the IWC's regulatory jurisdiction an entity that controls any one of these aspects of the employment relationship. ( Ibid. ) Second, the court explained that because this language, "phrased as it is in the alternative (i.e., 'wages, hours, or working conditions'), the language of the IWC's 'employer'

Last, the Borello court rejected the growers' claim that the harvesters should be found to be independent contractors by virtue of their written agreement with the growers, which stated that they were not employees. The court explained: "[T]he protections conferred by the Act have a public purpose beyond the private interests of the workers themselves. Among other things, the statute represents society's recognition that if the financial risk of job injuries is not placed upon the businesses which produce them, it may fall upon the public treasury. ... [¶] Moreover, there is no indication that Borello offers its cucumber harvesters any real choice of terms." ( Borello , supra , 48 Cal.3d at pp. 358-359, 256 Cal.Rptr. 543 , 769 P.2d 399 .)

On the basis of the foregoing reasons, the Borello court concluded that, as a matter of law, the farmworkers were employees for purposes of the workers' compensation act, and not independent contractors who were excluded from the coverage of the act. ( Borello , supra , 48 Cal.3d at p. 360, 256 Cal.Rptr. 543 , 769 P.2d 399 .)

As this lengthy review of the Borello decision demonstrates, although we have sometimes characterized Borello as embodying the common law test or standard for distinguishing employees and independent contractors (see, e.g., Ayala , supra , 59 Cal.4th at pp. 530-531, 173 Cal.Rptr.3d 332 , 327 P.3d 165 ), it appears more precise to describe Borello as calling for resolution of the employee or independent contractor question by focusing on the intended scope and purposes of the particular statutory provision or provisions at issue. In other words, Borello calls for application of a statutory purpose standard that considers the control of details and other potentially relevant factors identified in prior

order apply in a civil action brought by a worker under section 1194, and, second, that the applicable wage order sets forth three alternative definitions of employment for purposes of the wage order: "(a) to exercise control over the wages, hours or working conditions, or (b) to suffer or permit to work, or (c) to engage, thereby creating a common law employment relationship." ( Martinez , supra , 49 Cal.4th at p. 64, 109 Cal.Rptr.3d 514 , 231 P.3d 259 .) The court then went on to determine whether, under the wage order's alternative definitions, the produce merchants in that case should properly be considered the employer of the agricultural workers and thus could be held liable for the workers' unpaid minimum or overtime wages. ( Id. at pp. 68-77, 109 Cal.Rptr.3d 514 , 231 P.3d 259 .)

With respect to each of the produce merchants, the court in Martinez ultimately concluded that the merchants could not properly be found to be an employer under any of the wage order's alternative definitions.

First, in discussing the scope of the suffer or permit to work standard, the court stated generally: "We see no reason to refrain from giving the IWC's definition of 'employ' its historical meaning. That meaning was well established when the IWC first used the phrase 'suffer, or permit' to define employment, and no reason exists to believe the IWC intended another. Furthermore, the historical meaning continues to be highly relevant today: A proprietor who knows that persons are working in his or her business without having been formally hired, or while being paid less than the minimum wage, clearly suffers or permits that work by failing to prevent it, while having the power to do so. " ( Martinez , supra , 49 Cal.4th at p. 69, 109 Cal.Rptr.3d 514 , 231 P.3d 259 , italics added.) Nonetheless, the court rejected the workers' contention that because the merchants knew the agricultural workers were working for Munoz and because their work benefitted the produce merchants, the merchants suffered or permitted the workers to work within the meaning of the wage order. The court explained that the fact the merchants may have benefitted from the workers' labor, "in the sense that any purchaser of commodities benefits," was not sufficient to incur liability for having suffered or permitted them to work. ( Id. at p. 69, 109 Cal.Rptr.3d 514 , 231 P.3d 259 .) The workers' claim failed because they were not working in the produce merchants' businesses and the merchants lacked the power or authority to prevent the workers from working for Munoz. ( Id. at p. 70, 109 Cal.Rptr.3d 514 , 231 P.3d 259 .)

the Borello decision or the application of that standard in Borello regarding the proper classification of the workers involved in that case. Instead, in response to the continuing serious problem of worker misclassification as independent contractors, the California Legislature has acted to impose substantial civil penalties on those that willfully misclassify, or willfully aid in misclassifying, workers as independent contractors. (See § 226.8, enacted by Stats. 2011, ch. 706, § 1; § 2753, enacted by Stats. 2011, ch. 706, § 2.)

C. Martinez

We next summarize this court's decision in Martinez , supra , 49 Cal.4th 35 , 109 Cal.Rptr.3d 514 , 231 P.3d 259 . Although Martinez did not directly involve the issue of whether the workers in question were employees or independent contractors, it did address the meaning of the terms "employ" and "employer" as used in California wage orders, and the proper scope of the Martinez decision lies at the heart of the issue before our court in the present case.

In Martinez , supra , 49 Cal.4th 35 , 109 Cal.Rptr.3d 514 , 231 P.3d 259 , the strawberry grower Munoz & Sons (Munoz) directly employed seasonal agricultural workers but failed to pay the workers the required minimum or overtime wages they had earned. Thereafter, the workers filed an action under section 1194 seeking to recover such

With respect to the third alternative definition of an employment relationship, the common law standard, the Martinez court observed early in the decision that the workers disclaimed any argument that the produce merchants were their employers under common law. ( Martinez , supra , 49 Cal.4th at p. 52, fn. 17, 109 Cal.Rptr.3d 514 , 231 P.3d 259 .)

In sum, although the Martinez court concluded that the wage order definitions of the employment relationship apply in civil actions for unpaid minimum or overtime wages under section 1194, the court ultimately affirmed the trial court and Court of Appeal decisions in that case rejecting the workers' claims that the defendant produce merchants were the workers' employers for purposes of section 1194. ( Martinez , supra , 49 Cal.4th at p. 78, 109 Cal.Rptr.3d 514 , 231 P.3d 259 .)

D. Ayala

Four years after the decision in Martinez , supra , 49 Cal.4th 35 , 109 Cal.Rptr.3d 514 , 231 P.3d 259 , we rendered the decision in Ayala , supra , 59 Cal.4th 522 , 173 Cal.Rptr.3d 332 , 327 P.3d 165 . In Ayala , a wage and hour action had been filed on behalf of newspaper carriers who had been hired by the Antelope Valley Press (Antelope Valley) to deliver its newspaper.

definition has the obvious utility of reaching situations in which multiple entities control different aspects of the employment relationship, as when one entity, which hires and pays workers, places them with other entities that supervise the work." ( Ibid . ) Third, the court observed that "the IWC's 'employer' definition belongs to a set of revisions

in Martinez -the exercise control over wages hours or working conditions standard and the suffer or permit to work standard-are applicable only in determining whether an entity is a joint employer of the workers. In other words, Dynamex maintains that whether a business exercised control over the workers' wages, hours, or working conditions, or suffered or permitted the workers to work are relevant inquiries only in circumstances in which the question at issue is whether, when workers are "admitted employees" of one business (the primary employer), a business entity that has a relationship to the primary employer should also be considered an employer of the workers such that it is jointly responsible for the obligations imposed by the wage order. According to Dynamex, neither of these wage order definitions of "employ" and "employer" applies when the question to be answered is whether a worker is properly considered an employee who is covered by the wage order or, rather, an independent contractor who is excluded from the wage order's protections. The latter inquiry, Dynamex asserts, is governed solely by the third definition identified in Martinez , the Borello standard.

For the reasons discussed below, we conclude that there is no need in this case

The court in Martinez thus concluded, first, that the definitions of the employment relationship contained in an applicable wage

of a business might otherwise disavow with impunity. Courts applying such statutes before 1916 had imposed liability, for example, on a manufacturer for industrial injuries suffered by a boy hired by his father to oil machinery [citation], and on a mining company for injuries to a boy paid by coal miners to carry water [citation]." ( Id. at p. 58, 109 Cal.Rptr.3d 514 , 231 P.3d 259 .) Thus, Martinez demonstrates that the suffer or permit to work standard does not apply only to the joint employer context, but also can apply to the question whether,

that "Munoz alone, with the assistance of his foremen, hired and fired [the workers], trained and supervised them, determined their rate and manner of pay (hourly or piece rate), and set their hours, telling them when and where to report to work and when to take breaks." ( Ibid . ) Although the workers pointed to several occasions in which field representatives of the produce merchants had spoken to individual workers about the manner in which strawberries were to be packed ( id . at pp. 74-77, 109 Cal.Rptr.3d 514 , 231 P.3d 259 ), the court concluded that the record did not indicate "the field representatives ever supervised or exercised control over [Munoz's] employees" ( id. at p. 76, 109 Cal.Rptr.3d 514 , 231 P.3d 259 ) or that the merchants had the right to exercise such control under their contracts with Munoz. ( Id. at p. 77, 109 Cal.Rptr.3d 514 , 231 P.3d 259 .)

Id. at pp. 69-71, 109 Cal.Rptr.3d 514 , 231 P.3d 259 .) Thus, the lack of prior case support does not distinguish the employee/independent contractor context from the joint employer context at issue in Martinez .

With respect to the effect of the DLSE Manual, the parties and supporting amici curiae have not cited any DLSE decision since Martinez that has considered whether the suffer or permit to work standard should apply in resolving the employee/independent contractor question. Indeed, in a supplemental brief filed in response to a question posed by this court, the DLSE itself notes that the sections in the DLSE Manual that discuss independent contractors have not been revised since the decision in Martinez , and further states that "[ ]he lack of any mention of Martinez in Chapter 28 of the Manual [the section directly discussing the employee/independent contractor distinction] ... should not be interpreted as an expression of a view on the underlying question presented for review in this case." Moreover, our past cases explain that because the DLSE Manual was not adopted pursuant to the procedures embodied in the California Administrative Procedure Act, its provisions are not entitled to the deference ordinarily accorded to formal administrative regulations, and that this court must independently determine the meaning and scope of the provisions of an applicable wage order. (See, e.g., Alvarado v. Dart Container Corp. of California (2018) 4 Cal.5th 542 , 554-561, 229 Cal.Rptr.3d 347 , 411 P.3d 528 ; Kilby v. CVS Pharmacy, Inc. , supra , 63 Cal.4th at p. 13, 201 Cal.Rptr.3d 1 , 368 P.3d 554 ; Peabody v. Time Warner Cable, Inc. (2014) 59 Cal.4th 662 , 669-670, 174 Cal.Rptr.3d 287 , 328 P.3d 1028 ; Martinez , supra , 49 Cal.4th at p. 63, fn. 34, 109 Cal.Rptr.3d 514 , 231 P.3d 259 ; cf. Tidewater v. Bradshaw (1996) 14 Cal.4th 557 , 569-570, 59 Cal.Rptr.2d 186 , 927 P.2d 296 .) Accordingly, we conclude that Dynamex's reliance on the DLSE Manual is not persuasive.

Second, Dynamex asserts that the Martinez decision itself indicates that the Borello standard, rather than the suffer or permit to work standard, applies in the wage order context to distinguish independent contractors from employees. Dynamex points to a passage in Martinez in which the court relied on a

to determine whether the exercise control over wages, hours or working conditions definition is intended to apply outside the joint employer context, because we conclude that the suffer or permit to work standard properly applies to the question whether a worker should be considered an employee or, instead, an independent contractor, and that under the suffer or permit to work standard, the trial court class certification order at issue here should be upheld. (See Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004 , 1032, 139 Cal.Rptr.3d 315 , 273 P.3d 513 [when plaintiffs in a class action rely on multiple legal theories, a trial court's certification of a class is not an abuse of discretion if certification is proper under any of the theories].) As explained below, the suffer or permit to work standard has a long and well-established history, and in other jurisdictions has regularly been held

to work

for purposes of the obligations imposed by a wage order, a worker who is not an "admitted employee" of a distinct primary employer should

minimum wage and maximum hour legislation in which the standard has traditionally been embodied. Wage and hour statutes and wage orders were adopted in recognition of the fact that individual workers generally possess less bargaining power than a hiring business and that

In Martinez , we applied the suffer or permit to work standard in determining whether the produce merchants should be considered joint employers of the farmworkers even though that test had not been applied in prior California decisions. (

who knows that persons are working in his or her business without having been formally hired, or while being paid less than the minimum wage, clearly suffers or permits that work by failing to prevent it, while having the power to do so" (italics added ) ].) Under the suffer or permit to work standard, an individual worker who has been hired by a company can properly be viewed as the type of independent contractor to which the wage order was not intended to apply only if the worker is the type of traditional independent contractor-such as an independent plumber or electrician-who would not reasonably have been viewed as working in the hiring business . Such an individual would have been realistically understood, instead, as working only in his or her own independent business . (See, e.g., Allen v. Hayward (Q.B. 1845) 115 Eng.Rep. 749, 755 [describing independent contractor as "a person carrying on an independent business ... to perform works which [the hiring local officials] could not execute for themselves, and who was known to all the world as performing them"]; Enforcing Fair Labor Standards , supra , 46 UCLA L.Rev. at pp. 1143-1144.)

The federal courts, in applying the suffer or permit to work standard set forth in the FLSA, have recognized that the standard was intended to be broader and more inclusive than the preexisting common law test for distinguishing employees from independent contractors, but at the same time, does not purport to render every individual worker an employee rather than an independent contractor. (See Rutherford Food , supra , 331 U.S. 722 , 728-729, 67 S.Ct. 1473 .) As noted above ( ante , pp. 232 Cal.Rptr.3d at pp. 36-37 fn. 20, 416 P.3d at pp. 30-31, fn. 20), the federal courts have

of whether a worker is an employee or independent contractor for purposes of an applicable wage order. (See, e.g., Arnold v. Mutual of Omaha Ins. Co. (2011) 202 Cal.App.4th 580 , 586-588, 135 Cal.Rptr.3d 213 ; Arzate v. Bridge Terminal Transport, Inc. (2011) 192 Cal.App.4th 419 , 425-427, 121 Cal.Rptr.3d 400 .) None of the Court of Appeal decisions relied upon by Dynamex, however, refers to or analyzes the potential application of the suffer or permit to work standard to the employee or independent contractor question. By contrast, the Court of Appeal decision in the present case cited and discussed a number of post- Martinez Court of Appeal decisions recognizing that the definitions of "employ" and "employer" discussed in Martinez now govern the resolution of claims arising out of California wage orders, including whether a worker is an employee or independent contractor. (See, e.g., Guerrero v. Superior Court (2013) 213 Cal.App.4th 912 , 945-952, 153 Cal.Rptr.3d 315 ;

an employee to know when, how, and how much he will be paid requires a test designed to yield a more predictable result than a totality-of-the-circumstances analysis that is by its nature case specific"]; accord Lauritzen , supra , 835 F.2d at p. 1539 (conc. opn. of Easterbrook, J.) ["People are entitled to know the legal

Labor Standards Act (FLSA) ( 29 U.S.C. § 201 et seq. )-contains its own standard for resolving the employee or independent contractor issue (see post , pp. 56-58, fn. 20, & pp. 61-62), an employer must, in any event, take into account a variety of applicable standards. Indeed, the federal context demonstrates that California is not alone is adopting a distinct standard that provides broader coverage of workers with regard to the very fundamental protections afforded by wage and hour laws and wage orders; like California wage orders, the FLSA contains a broader standard of employment than that generally applicable in other, non-wage-and-hour federal contexts. (See, e.g., Darden , supra , 503 U.S. at p. 326, 112 S.Ct. 1344 .)

Finally, and perhaps most significantly, Dynamex argues that the suffer or permit to work standard cannot serve as the test for distinguishing employees from independent contractors because a literal application of that standard would characterize all individual workers who directly provide services to a business as employees. A business that hires any individual to provide services to it can always be said to knowingly "suffer or permit" such an

Unlike a number of our sister states that included the suffer-or-permit-to-work standard in their wage and hour laws or regulations after the FLSA had been enacted and had been interpreted to incorporate the economic reality test, California's adoption of the suffer or permit to work standard predated the enactment of the FLSA. (See Martinez , supra , 49 Cal.4th at pp. 57-59, 109 Cal.Rptr.3d 514 .) Thus, as a matter of legislative intent, the IWC's adoption of the suffer or permit to work standard in California wage orders was not intended to embrace the federal economic reality test. Furthermore, prior California cases have declined to interpret California wage orders as governed by the federal economic reality standard and instead have indicated that the California wage orders are intended to provide broader protection than that accorded workers under the federal standard. (See Martinez , supra , 49 Cal.4th at pp. 66-68, 109 Cal.Rptr.3d 514 , 231 P.3d 259 ; accord Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833 , 843, 182 Cal.Rptr.3d 124 , 340 P.3d 355 ; Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575 , 592, 94 Cal.Rptr.2d 3 , 995 P.2d 139 ; Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785 , 797-798, 85 Cal.Rptr.2d 844 , 978 P.2d 2 .)

U.S. Dept. of Labor, Wage & Hour Div., Administrator's Interpretation letter No. 2015-1, The Application of the Fair Labor Standard Act's "Suffer or Permit" Standard in the Identification of Employees Who Are Misclassified as Independent

see also Weil,

standard was proposed and adopted in 1937 as part of the FLSA, the principal federal wage and hour legislation. One of the authors of the legislation, then-Senator (later United States Supreme Court Justice) Hugo L. Black, described this standard as "the broadest definition" that has been devised for extending the coverage of a statute or regulation to the widest class of workers that reasonably fall within the reach of a social welfare statute. (See United States v. Rosenwasser (1945) 323 U.S. 360 , 363, fn. 3, 65 S.Ct. 295 , 89 L.Ed. 301 ( Rosenwasser ).) More recent cases, in referring to the suffer or permit to work standard, continue to describe the standard in just such broad, inclusive terms. (See, e.g., Darden , supra , 503 U.S. at p. 326, 112 S.Ct. 1344 [noting the "striking breadth" of the suffer or permit to work standard ]; Zheng v. Liberty Apparel Co. , supra , 355 F.3d at p. 69 ; Lauritzen , supra , 835 F.2d at p. 1543 (conc. opn. of Easterbrook, J.); Donovan v. Dialamerica Marketing, Inc. (3d Cir. 1985) 757 F.2d 1376 , 1382.)

that must be liberally construed in a manner that serves its remedial purposes (see, e.g., Industrial Welf. Com. , supra , 27 Cal.3d at p. 702, 166 Cal.Rptr. 331 , 613 P.2d 579 ), as our decision in Martinez recognized, the suffer or permit to work standard must be interpreted and applied broadly to include within the covered "employee" category all individual workers who can reasonably be viewed as "working in the [hiring entity's] business ." ( Martinez, supra , 49 Cal.4th at p. 69, 109 Cal.Rptr.3d 514 , 231 P.3d 259 , italics added ["A proprietor

embodied in the relevant wage orders directly or indirectly-through indifference, negligence, intentional subterfuge, or misclassification. It is well established, under all of the varied standards that have been utilized for distinguishing employees and independent contractors, that a business cannot unilaterally determine a worker's status simply by assigning the worker the label "independent contractor" or by requiring the worker, as a condition of hiring, to enter into a contract that designates the worker an independent contractor. (See, e.g., Borello , supra , 48 Cal.3d at pp. 349, 358-359, 256 Cal.Rptr. 543 , 769 P.2d 399 ; Rutherford Food , supra , 331 U.S. at p. 729, 67 S.Ct. 1473 .) This restriction on a hiring business's unilateral authority has particular force and effect under the wage orders' broad suffer or permit to work standard.

As a matter of common usage, the term "independent contractor," when applied to an individual worker, ordinarily has been understood to refer to an individual who independently has made the decision to go into business for himself or herself. (See, e.g., Borello , supra , 48 Cal.3d at p. 354, 256 Cal.Rptr. 543 , 769 P.2d 399 [describing independent contractor as a worker who "has independently chosen the burdens and benefits of self-employment"].) Such an individual generally takes the usual steps to establish and promote his or her independent business-for example, through incorporation, licensure, advertisements, routine offerings to provide the services of the independent business to the public or to a number of potential customers, and the like. When a worker has not independently decided to engage in an independently established business but instead is simply designated an independent contractor by the unilateral action of a hiring entity, there is a substantial risk that the hiring business is attempting to evade the demands of an applicable wage order through misclassification. A company that labels as independent contractors a class of workers who are not engaged in an independently established business in order to enable the company to obtain the economic advantages that flow from avoiding

Real v. Driscoll Strawberry Associates, Inc. (1979) 603 F.2d 748 , 754-755 ; see generally Annot., supra , 51 A.L.R.Fed. 702 .)

A multifactor standard-like the economic reality standard or the Borello standard-that calls for consideration of all potentially relevant factual distinctions in different employment arrangements on a case-by-case, totality-of-the-circumstances basis has its advantages. A number of state courts, administrative agencies and academic commentators have observed, however, that such a wide-ranging and flexible test for evaluating whether a worker should be considered an employee or an independent contractor has significant disadvantages, particularly when applied in the wage and hour context.

First, these jurisdictions and commentators have pointed out that a multifactor, "all the circumstances" standard makes it difficult for both hiring businesses and workers to determine in advance how a particular category of workers will be classified, frequently leaving the ultimate employee or independent contractor determination to a subsequent and often considerably delayed judicial decision. In practice, the lack of an easily and consistently applied standard often leaves both businesses and workers in the dark with respect to basic questions relating to wages and working conditions that arise regularly, on a day-to-day basis. (See, e.g., Hargrove v. Sleepy's , LLC (2015) 220 N.J. 289 , 106 A.3d 449 , 465 ( Hargrove ) ["permitting

entity is required to establish the existence of each of the three parts of the ABC standard. Furthermore, inasmuch as a hiring entity's failure to satisfy any one of the three parts itself establishes that the worker should be treated as an employee for purposes of the wage order, a court is free to consider the separate parts of the ABC standard in whatever order it chooses. Because in many cases it may be easier and clearer for a court to determine whether or not part B or part C of the ABC standard has been satisfied than for the court to resolve questions regarding the nature or degree of a worker's freedom from the hiring entity's control for purposes of part A of the standard, the

who provide similar services and are intended to be protected under the suffer or permit to work standard would frequently find themselves displaced by those willing to decline such coverage. As the United States Supreme Court explained in a somewhat analogous context in Alamo Foundation , supra , 471 U.S. at page 302, 105 S.Ct. 1953 , with respect to the federal wage and hour law: "[T]he purposes of the [FLSA] require that it be applied even to those who would decline its protections. If an exception to the Act were carved out for employees willing to testify that they performed work 'voluntarily,' employers might be able to use superior bargaining power to coerce employees to make such assertions, or to waive their protections under the Act. [Citations.] Such

3. Part C: Is the worker customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity?

Third, as the situations that gave rise to the suffer or permit to work language disclose, the suffer or permit to work standard, by expansively defining who is an employer, is intended to preclude a business from evading

significant advantages of the ABC standard-in terms of increased clarity and consistency-will often be best served by first considering one or both of the latter two parts of the standard in resolving the employee or independent contractor question. (See, e.g., Awuah v. Coverall North America, Inc. (D.Mass. 2010) 707 F.Supp.2d 80 , 82 [considering only part B of the ABC standard ]; Coverall N. America v. Div. of Unemployment (2006) 447 Mass. 852 , 857 N.E.2d 1083 , 1087 [considering only part C of the ABC standard ]; Boston Bicycle Couriers v. Deputy Dir. of the Div. of Empl. & Training , supra , 778 N.E.2d at p. 968 [same].)

business to permit that question to be resolved on a class basis.

Because each part of the ABC test may be independently determinative of the employee or independent contractor question, our conclusion that there is a sufficient commonality of interest under part B of the ABC test is sufficient in itself to support the trial court's class certification order. (See Brinker Restaurant Corp. v. Superior Court , supra , 53 Cal.4th at p. 1032, 139 Cal.Rptr.3d 315 , 273 P.3d 513 [class certification is not an abuse of

a worker should properly be classified as an employee, the hiring business bears the responsibility of paying federal Social Security and payroll taxes, unemployment insurance taxes and state employment taxes, providing worker's compensation insurance, and, most relevant for the present case, complying with numerous state and federal statutes and regulations governing the wages, hours, and working conditions of employees. The worker then obtains the protection of the applicable labor laws and regulations. On the other hand, if a worker should properly be classified as an independent contractor, the business does not bear any of those costs or responsibilities, the worker obtains none of the numerous labor law benefits, and the public may be required under applicable laws to assume additional financial burdens with respect to such workers and their families.

Although in some circumstances classification as an independent contractor may be advantageous to workers as well as to businesses, the risk that workers who should be treated as employees may be improperly misclassified as independent contractors is significant in light of the potentially substantial economic incentives that a business may have in mischaracterizing some workers as independent contractors. Such incentives include the unfair

the work, both under the contract for the performance of such work and in fact; (B) that the worker performs 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.

Although, as we shall see, it appears from the class certification order that the trial court may have interpreted the wage order's suffer or permit to work standard too literally, we conclude that on the facts

According to Dynamex, Lee performed on-demand delivery services for Dynamex for a total of 15 days and never performed delivery service for any company other than Dynamex. On April 15, 2005, three months after leaving his work at Dynamex, Lee filed this lawsuit on his own behalf and on behalf of similarly situated Dynamex drivers.

In essence, the underlying action rests on the claim that, since December 2004, Dynamex drivers have performed essentially the same tasks in the same manner as when its drivers were classified as employees, but Dynamex has improperly failed to comply with the requirements imposed by the Labor Code and wage orders for employees with respect to such drivers. The complaint alleges five causes of action arising from Dynamex's alleged misclassification of employees as independent contractors: two counts of unfair and unlawful business practices in violation of Business and Professions Code section 17200, and three counts of Labor Code violations based on Dynamex's failure to pay overtime compensation, to properly provide itemized wage statements, and to compensate the drivers for business expenses.

The trial court's initial order denying class certification was reversed by the Court of Appeal based on the trial court's failure to compel Dynamex to provide contact information for potential putative class members that would enable plaintiffs to establish the necessary elements for class certification. (See Lee v. Dynamex , supra , 166 Cal.App.4th 1325 , 1336-1338, 83 Cal.Rptr.3d 241 .) After the trial court permitted plaintiffs to file a first amended complaint adding Pedro Chevez (a former Dynamex dedicated fleet driver) as a second named plaintiff and the parties stipulated to the filing of a second amended complaint (the current operative complaint ), the parties agreed to send questionnaires to all putative class members seeking information that would be relevant to potential class membership.

Based on the responses on the questionnaires that were returned by current or former Dynamex drivers, plaintiffs moved for certification of a revised class of Dynamex drivers. As ultimately modified by the trial court, the proposed class includes those individuals (1) who were classified as

delivery company that did not have a relationship with Dynamex or for the driver's own personal delivery customers. Thus, as narrowed by these exclusions, the class consisted only of individual Dynamex drivers who had returned complete and timely questionnaires and who personally performed delivery services for Dynamex but did not employ other drivers or perform delivery services for another delivery company or for the driver's own delivery business. The trial court's certification order states that 278 drivers returned questionnaires and that from the questionnaire responses it appears that at least 184 drivers fall within the proposed class.

On May 11, 2011, the trial court, in a 26-page order, granted plaintiffs' motion for class certification. The validity of that order is at issue in the present proceeding.

After determining that the proposed class satisfied the prerequisites of ascertainability, numerosity, typicality, and adequacy of class representatives and counsel required for class certification, the trial court turned to the question of commonality-that is, whether common issues predominate over individual

"employ" and "employer" discussed in Martinez are applicable only in determining whether an entity that has a relationship with the primary employer of an admitted employee should be considered a joint employer of the employee, and not in deciding whether a worker is properly classified as an employee or an independent contractor. Dynamex asserted that even with respect to claims arising out of the obligations imposed by a wage order, the question of a worker's status as an employee or independent contractor must be decided solely by reference to the Borello standard.

In its certification order, the trial court agreed with plaintiffs' position, relying on the fact that the Martinez decision "did not indicate that its analysis was in any way limited to situations involving questions of joint employment." The court found that the Martinez decision represents "a redefinition of the employment relationship under a claim of unpaid wages as follows: 'To employ, then, under the IWC's [Industrial Welfare Commission's] definition, has three alternative definitions. It means (a) to exercise control over the wages, hours or working conditions, (b) to suffer or permit to work, or (c) to engage, thereby creating a common law employment relationship.' " (Quoting Martinez , supra , 49 Cal.4th at p. 64, 109 Cal.Rptr.3d 514 , 231 P.3d 259 .) The trial court concluded that "[ ]hese definitions must be considered when analyzing whether the class members are employees or independent contractors" and thereafter proceeded to discuss separately each of the three definitions or standards set forth in Martinez in determining whether common issues predominate for purposes of class certification.

With regard to the "exercise control over wages, hours or working conditions" test, the trial court stated that " 'control over wages' means that a person or entity has the power or authority to negotiate and set an employee's rate of pay" and that "[w]hether or not Dynamex had the authority to negotiate each driver's rate of pay can be answered by looking at its policies with regard to hiring drivers. ... [I]ndividual inquiry is not required to determine whether Dynamex exercises control over drivers' wages."

With regard to the suffer or permit to work test, the trial court stated in full: "An employee is suffered or permitted to work if the work was performed with the knowledge of the employer. [Citation.] This includes work that was performed that the employer

set forth in Borello , supra , 48 Cal.3d 341 , 256 Cal.Rptr. 543 , 769 P.2d 399 . The trial court described the Borello test as involving the principal factor of " 'whether the person to whom services is rendered has the right to control the manner and means of accomplishing the result desired' " as well as the following nine additional factors: "(1) right to discharge at will, without cause; (2) whether the one performing the services is engaged in a distinct occupation or business; (3) the kind of occupation, with reference to whether in the locality the work

With regard to the right to discharge factor, the trial court stated: "[T]he right to discharge at will, without cause, is an important consideration. Defendant's [supervising officer] testified that Dynamex maintains the right to discharge the drivers at will. [Citation.] This does not appear to vary from driver to driver. So it is a classwide factor, which is particularly relevant to demonstrating the existence of an employer-employee relationship."

With regard to the "distinct occupation or business" factor, the trial court stated: "A distinct business relates to whether the drivers have the opportunity for profit and loss. [Citation.] Plaintiffs contend that the drivers have no opportunity for profit or loss because

and do not require individualized inquiry of the class members. But the main factor in determining whether an employment agreement exists-control of the details-does require individualized inquiries due to the fact that there is no indication of a classwide policy that only defendants obtain new customers, only the defendants provide customer service and create the delivery schedules."

With respect to the entire question of commonality, however, the trial court concluded: "Common questions predominate the inquiry into whether an employment relationship exists between Dynamex and the drivers. The first two alternative definitions of 'employer' can both be demonstrated through common proof, even if the common law test requires individualized inquiries."

Having found that common issues predominate, the trial court went on to conclude that "[a] class action is a superior means of conducting this litigation." The court stated in this regard: "Given that there is evidence from Plaintiffs that common questions predominate the inquiry into [the] employment relationship[,] managing this as a class action with respect to those claims will be feasible. There appears to be no litigation by individual class members, indicating that they have little interest in personally controlling their claims. Finally, consolidating all the claims before a single court would be desirable since it would allow for consistent rulings with respect to all the class members' claims."

On the basis of its foregoing determinations, the trial court granted plaintiffs' motion for class certification.

In December 2012, Dynamex renewed its motion to decertify the class action that the trial court had certified in May 2011. Dynamex relied upon intervening Court of Appeal decisions assertedly demonstrating that the trial court had erred in relying upon the wage order's alternative definitions of employment, as set forth in Martinez . The trial court denied the renewed motion to decertify the class.

Subdivision 2 of the order, which sets forth the definitions of terms as used in

We next summarize the most relevant California judicial decisions, providing a historical review of the treatment of the employee or independent contractor distinction under California law.

The difficulty that courts in all jurisdictions have experienced in devising an acceptable general test or standard that properly distinguishes employees from independent contractors is well documented. As the United States Supreme Court observed in Board v. Hearst Publications (1944) 322 U.S. 111 , 121, 64 S.Ct. 851 , 88 L.Ed. 1170 : "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." (Fn. omitted.)

the court stated that "[ ]he principal test of an employment relationship is whether the

B. Borello

In 1989, in Borello , supra , 48 Cal.3d 341 , 256 Cal.Rptr. 543 , 769 P.2d 399 , this court addressed the employee or independent contractor question in an opinion that has come to be viewed as the seminal California decision on this subject. Because of the significance of this decision, we review the majority opinion in Borello at length.

The particular controversy in Borello , supra , 48 Cal.3d 341 , 256 Cal.Rptr. 543 , 769 P.2d 399 , concerned whether farmworkers hired by a grower to harvest cucumbers under a written "sharefarmer" agreement were independent contractors or employees for purposes of the California workers' compensation statutes. The grower contended that the farmworkers were independent contractors under the control of details test because the workers (1) were free to manage their own labor (the grower did not supervise the picking at all but compensated the workers based on the amount of cucumbers that they harvested ), (2) shared the profit or loss from the crop, and (3) agreed in writing that they were not employees.

In rejecting the grower's contentions, the court in Borello summarized its conclusion in

overlap those pertinent under the common law. [Citation.] Each service arrangement must be evaluated on its facts, and the dispositive circumstances

cultivates it throughout most of its growing cycle. The harvest takes place on Borello's premises, at a time determined by the crop's maturity. During the harvest itself, Borello supplies the sorting bins and boxes, removes the harvest from the field, transports it to market, sells it, maintains documentation on the workers' proceeds, and hands out their checks. Thus, '[a]ll meaningful aspects of this business relationship: price, crop cultivation, fertilization

The court next found that "the sharefarmers and their families exhibit no characteristics which might place them outside the Act's intended coverage of employees. They engage in no distinct trade or calling. They do not hold themselves out in business. They perform typical farm labor for hire wherever jobs are available. They invest nothing but personal services and hand tools. They incur no opportunity for 'profit' or 'loss'; like employees hired on a piecework basis, they are simply paid by the size and grade of cucumbers they pick. They rely solely on work in the fields for their subsistence and livelihood. Despite the contract's admonitions, they have no practical opportunity to insure themselves or their families against loss of income caused by nontortious work injuries. If Borello is not their employer, they themselves, and society at large, thus assume the entire financial burden when such injuries occur. Without doubt, they are a class of workers to whom the protection of the Act is intended to extend." ( Borello , supra , 48 Cal.3d at pp. 357-358, 256 Cal.Rptr. 543 , 769 P.2d 399 , fns. omitted.)

The Borello decision repeatedly emphasizes statutory purpose as the touchstone for deciding whether a particular category of workers should be considered employees rather than independent contractors for purposes of social welfare legislation. (See Borello , supra , 48 Cal.3d at pp. 351, 353-354, 357, 358, 359, 256 Cal.Rptr. 543 , 769 P.2d 399 .) This emphasis sets apart the Borello test for distinguishing employees from independent contractors from the standard embraced in more recent federal cases, which apply a more traditional common law test for distinguishing between employees and independent contractors for purposes of most federal statutes. Early federal cases interpreting a variety of New Deal social welfare enactments relied heavily on a statutory purpose interpretation in determining who should be considered an employee for purposes of those enactments. (See, e.g., Labor Board v. Hearst Publications , supra , 322 U.S. at pp. 124-129, 64 S.Ct. 851 ; United States v. Silk (1947) 331 U.S. 704 , 711-714, 67 S.Ct. 1463 , 91 L.Ed. 1757 .) However, subsequent congressional legislation in reaction to such decisions has been interpreted to require that federal legislation generally be construed, in the absence of a more specific statutory standard or definition of employment, to embody a more traditional common law test for distinguishing between employees and independent contractors, in which the control of details factor is given considerable weight. (See, e.g., Nationwide Mut. Ins. Co. v. Darden (1992) 503 U.S. 318 , 324-325, 112 S.Ct. 1344 , 117 L.Ed.2d 581 ( Darden ).) Unlike the federal experience, however, in the almost 30 years since the Borello decision, the California Legislature has not exhibited or registered any disagreement with either the statutory purpose standard adopted by

wages not only from Munoz, but also from several produce merchants to whom Munoz regularly sold its strawberries. The workers contended that in an action for unpaid minimum or overtime wages under section 1194, the alternative definitions of "employ" and "employer" set forth in the applicable Industrial Welfare Commission wage order-there, Wage Order No. 14-constituted the applicable standards for determining who was a potentially liable employer. They further contended that under the wage order definitions, the produce merchants, as well as Munoz, each should properly be considered the workers' employer who was jointly liable for the workers' unpaid wages.

In discussing this question, the court in Martinez recognized at the outset that the workers' attempt in that case to recover unpaid wages "from persons who contracted with their ostensible employer raises issues that have long avoided the attention of California's courts." (

The court first observed that, beginning in 1916, the IWC's wage orders encompassed, as employers, those entities who "employ or suffer or permit" persons to work for them. ( Martinez , supra , 49 Cal.4th at p. 57, 109 Cal.Rptr.3d 514 , 231 P.3d 259 , italics omitted.) The court noted that the "suffer or permit" language, now embodied in the definition of "employ" in the wage order at issue in Martinez (as well as in the transportation wage order at issue in this case and in all other wage orders), derived from statutes regulating and prohibiting child labor that were in use throughout the country in 1916, and which were based on model child labor laws published between 1904 and 1912. ( Id. at pp. 57-58, 109 Cal.Rptr.3d 514 , 231 P.3d 259 .) The Martinez court observed that the suffer or permit to work language had been interpreted to impose liability upon an entity "even when no common law employment relationship existed between the minor and the defendant, based on the defendant's failure to exercise reasonable care to prevent child labor from occurring." ( Id. at p. 58, 109 Cal.Rptr.3d 514 , 231 P.3d 259 .) The court explained: "Not requiring a common law master and servant relationship, the widely used 'employ, suffer or permit' standard reached irregular working arrangements the proprietor of a business might otherwise disavow with impunity. Courts applying such statutes before 1916 had imposed liability, for example, on a manufacturer for industrial injuries suffered by a boy hired by his father to oil machinery [citation], and on a mining company for injuries to a boy paid by coal miners to carry water [citation]." ( Ibid. )

The Martinez court then went on to observe that, in addition to defining "employ" to mean suffer or permit to work, all IWC wage orders also include a separate provision defining "employer" to include a person or entity who "employs or exercises control over the wages, hours, or working conditions of any person." ( Martinez , supra , 49 Cal.4th at p. 59, 109 Cal.Rptr.3d 514 , 231 P.3d 259 .) With respect to this language, the court stated: "Beginning with the word 'employs,' the definition logically incorporates the separate definition of 'employ' (i.e., 'to engage, suffer, or permit to work') as one alternative. The remainder of the definition-'exercises control over ... wages, hours, or working conditions' "-has no clearly identified, precisely literal statutory or common law antecedent."

intended to distinguish state wage law from its federal analogue, the FLSA [Fair Labor Standards Act ]" ( ibid. ), providing workers with greater protection than that afforded to workers under the FLSA as limited by Congress under the Portal-to-Portal Act of 1947. ( Id. at pp. 59-60, 109 Cal.Rptr.3d 514 , 231 P.3d 259 .)

Finally, the court in Martinez held that the IWC wage orders, by defining "employ" to mean "engage" to work (as well as to "suffer or permit" to work), incorporate the common law definition of employment as an alternative definition. The court explained in this regard: "The verbs 'to suffer' and 'to permit,' as we have seen, are terms of art in employment law. [Citation.] In contrast, the verb 'to engage' has no other apparent meaning in the present context than its plain, ordinary sense of 'to employ,' that is, to create a common law employment relationship. This conclusion makes sense because the IWC, even while extending its regulatory protection to workers whose employment status the common law did not recognize, could not have intended to withhold protection from the regularly hired employees who undoubtedly comprise the vast majority of the state's workforce." ( Martinez , supra , 49 Cal.4th at p. 64, 109 Cal.Rptr.3d 514 , 231 P.3d 259 , fn. omitted.)

The Martinez court summarized its conclusion on this point as follows: "To employ, then, under the IWC's definition, has three alternative definitions. It means: (a) to exercise control over the wages, hours or working conditions, or (b) to suffer or permit to work, or (c) to engage, thereby creating a common law employment relationship." ( Martinez , supra , 49 Cal.4th at p. 64, 109 Cal.Rptr.3d 514 , 231 P.3d 259 .)

Moreover, the court in Martinez thereafter took pains to emphasize the importance of not limiting the meaning and scope of "employment" to only the common law definition for purposes of the IWC's wage orders, declaring that "ignoring the rest of the IWC's broad regulatory definition would substantially impair the commission's authority and the effectiveness of its wage orders. The commission ... has the power to adopt rules to make the minimum wage 'effective' by 'prevent[ing] evasion and subterfuge ....' [Citation.] ... [L]anguage consistently used by the IWC to define the employment relationship, beginning with its first wage order in 1916 ('suffer, or permit'), was commonly understood to reach irregular working arrangements that fell outside the common law, having been drawn from statutes governing child labor and occasionally that of women. [Citation.] ... To adopt such a definitional provision ... lay squarely within the IWC's power, as the provision has 'a direct relation to minimum wages' [citation] and is reasonably necessary to effectuate the purposes of the statute [citations]. For a court to refuse to enforce such a provision in a presumptively valid wage

order [citation] simply because it differs from the common law would thus endanger the commission's ability to achieve its statutory purposes. [¶] One cannot overstate the impact of such a holding on the IWC's powers. Were we to define employment exclusively according to the common law in civil actions for unpaid wages we would render the commission's definitions effectively meaningless." ( Martinez , supra , 49 Cal.4th at p. 65, 109 Cal.Rptr.3d 514 , 231 P.3d 259 , fn. omitted.)

Second, applying the standard that looks to the exercise of control over wages, hours or working conditions, the court rejected the argument that the produce merchants, through their contractual relationships with Munoz, dominated the Munoz business financially, and thus could properly be found to exercise indirect control over the wages and hours of Munoz's employees. ( Martinez , supra , 49 Cal.4th at pp. 71-77, 109 Cal.Rptr.3d 514 , 231 P.3d 259 .) The court found that contrary to the implicit premise of the workers' claim, the record indicated that the Munoz business was not a sham arrangement created by the produce merchants, but rather constituted "a single, integrated business operation, growing and harvesting strawberries for several unrelated merchants and combining revenue from all sources with a personal investment, in the hope of earning a profit at the end of the season." ( Id. at p. 72, 109 Cal.Rptr.3d 514 , 231 P.3d 259 .) Further, the court additionally determined

The carriers alleged that Antelope Valley had misclassified them as independent contractors when they should have been treated as employees. The trial court in Ayala had denied the plaintiffs' motion to certify the action as a class action on the ground that under the Borello test-which, at the trial level, both parties agreed was the applicable standard-common issues did not predominate because application of the Borello standard "would require 'heavily individualized inquiries' into Antelope Valley's control over the carriers' work." ( 59 Cal.4th at p. 529, 173 Cal.Rptr.3d 332 , 327 P.3d 165 .)

In reviewing the trial court's ruling in Ayala , this court noted that "[i]n deciding whether plaintiffs were employees or independent contractors, the trial court and Court of Appeal applied the common law test, discussed most recently at length in Borello , supra , 48 Cal.3d 341 , 256 Cal.Rptr. 543 , 769 P.2d 399 ." ( Ayala , supra , 59 Cal.4th at pp. 530-531, 173 Cal.Rptr.3d 332 , 327 P.3d 165 .) We pointed out that while the Ayala case was pending in our court "[w]e solicited supplemental briefing concerning the possible relevance of the additional tests for employee status in IWC wage order No. 1-2001, subdivision 2(D)-(F)." ( Id. at p. 531, 173 Cal.Rptr.3d 332 , 327 P.3d 165 [citing, inter alia, Martinez , supra , 49 Cal.4th 35 , 109 Cal.Rptr.3d 514 , 231 P.3d 259 ].) The court in Ayala explained that "[i]n light of the supplemental briefing, and because plaintiffs proceeded below on the sole basis that they are employees under the common law, we now

misclassified as independent contractors when they should have been classified as employees, a class may be certified based on the wage order definitions of "employ" and "employer" as construed in Martinez , supra , 49 Cal.4th 35 , 109 Cal.Rptr.3d 514 , 231 P.3d 259 , or, instead, whether the test for distinguishing between employees and independent contractors discussed in Borello , supra , 48 Cal.3d 341 , 256 Cal.Rptr. 543 , 769 P.2d 399 is the only standard that applies in this setting.

IV. WITH RESPECT TO THE CLAIMS RESTING ON DYNAMEX'S ALLEGED FAILURE TO FULFILL OBLIGATIONS IMPOSED BY THE APPLICABLE WAGE ORDER, DID THE TRIAL COURT PROPERLY DETERMINE CLASS CERTIFICATION BASED ON THE DEFINITIONS OF "EMPLOY" AND "EMPLOYER" IN THE WAGE ORDER ?

As noted, the drivers' general contention in this case is that Dynamex misclassified its drivers as independent contractors when they should have been classified as employees and as a result violated its obligations under the applicable wage order and a variety of statutes. Most of the causes of action in the complaint rest on Dynamex's alleged failure to fulfill obligations directly set forth in the wage order-for example, the alleged failure to pay overtime wages or to provide accurate wage statements. Other causes of action include Dynamex's alleged failure to comply with statutory obligations that do not derive directly from the applicable wage order-for example, the obligation to reimburse employees for business-related transportation expenses such as fuel or tolls. (See § 2802.) As already explained, Dynamex's petition for

employer for purposes of the applicable wage order. ( Id. at pp. 60-62, 109 Cal.Rptr.3d 514 , 231 P.3d 259 .) After examining the definitions of "employ" and "employer" set forth in the applicable wage order, the court in Martinez held that the wage order embodied three alternative definitions of "employ": "(a) to exercise control over the wages, hours or working conditions, or (b) to suffer or permit to work, or (c) to engage, thereby creating a common law employment relationship." ( Id. at p. 64, 109 Cal.Rptr.3d 514 , 231 P.3d 259 .) The court in Martinez went on to consider each of these alternative definitions or standards in determining whether the produce merchants in that case should properly be considered the employers of the agricultural workers for purposes of the applicable wage order. We ultimately concluded that the produce merchants were not employers of the workers under any of the wage order's definitions.

In the present case, Dynamex argues that two of the three alternative definitions identified

applicable to the question whether a worker should be considered an employee or an independent contractor for the purposes of social welfare legislation embodying that standard. Accordingly, we confine the discussion of Dynamex's argument to an analysis of the scope and meaning of the suffer or permit to work standard in California wage orders.

A. Does the Suffer or Permit to Work Definition Apply to the Employee/Independent Contractor Distinction?

To begin with, although Dynamex contends that the suffer or permit to work standard should be understood as applicable only to the joint employer question like that involved in the Martinez decision itself, there is nothing in the language of the wage order indicating that the standard is so limited. As Martinez discussed, the suffer or permit language is one of the wage order's alternative definitions of the term "employ." ( Martinez , supra , 49 Cal.4th at p. 64, 109 Cal.Rptr.3d 514 , 231 P.3d 259 .) On its face, the standard would appear relevant to a determination whether, for purposes of the wage order, a worker should be considered an individual who is "employ[ed ]" by an "employer" (and therefore an employee covered by the wage order) or, instead, an independent contractor who has been hired, but not "employed," by the hiring business (and thus not covered by the wage order).

Moreover, the discussion of the origin and history of the suffer or permit to work language in Martinez itself makes it quite clear that this standard was intended to apply beyond the joint employer context. As Martinez explains, at the time the suffer or permit language was initially adopted as part of a wage order in 1916, such language "was already in use throughout the country in statutes regulating and prohibiting child labor (and occasionally that of women), having been recommended for that purpose in several model child labor laws published between 1904 and 1912 [citation]." ( Martinez , supra , 49 Cal.4th at pp. 57-58, 109 Cal.Rptr.3d 514 , 231 P.3d 259 , fn. omitted.) Martinez observed that "[n]ot requiring a common law master and servant relationship, the widely used 'employ, suffer or permit' standard reached irregular working arrangements the proprietor

the relevant sections of the DLSE Manual dealing with independent contractors make no mention of the suffer or permit to work standard.

As our decision in Martinez itself observed, however, prior to Martinez no California decision had discussed the wage orders' suffer or permit to work language in any context. ( Martinez , supra , 49 Cal.4th at p. 50, 109 Cal.Rptr.3d 514 , 231 P.3d 259 .)

number of factors discussed in Borello in concluding that Munoz, the grower who employed the individual agricultural workers, was an independent contractor rather than an employee of the produce merchants. ( Martinez , supra , 49 Cal.4th at p. 73, 109 Cal.Rptr.3d 514 , 231 P.3d 259 .) The grower in Martinez , however, operated a distinct business with its own employees and was not an individual worker like the delivery drivers at issue in the present case. In any event, the passage in question in Martinez makes it quite clear that the court was not deciding whether the Borello standard was the only applicable standard for determining whether a worker is an employee or independent contractor for purposes of an applicable wage order. ( Id. at p. 73, 109 Cal.Rptr.3d 514 , 231 P.3d 259 ["Assuming the decision in S.G. Borello , supra , 48 Cal.3d 341 , 256 Cal.Rptr. 543 , 769 P.2d 399 , has any relevance to wage claims, a point we do not decide , the case does not advance plaintiffs' argument" (italics added ) ].)

Third, Dynamex maintains that a number of Court of Appeal opinions decided after Martinez demonstrate that the Borello standard continues to control the determination

order's obligations that is intentionally broader than the standard of employment that would otherwise apply, and as our decision in Martinez emphasized, we must respect the IWC's legislative authority to promulgate the test that will govern the scope of the wage order. ( Martinez , supra , 49 Cal.4th at pp. 60-62, 109 Cal.Rptr.3d 514 , 231 P.3d 259 .)

In its reply brief, Dynamex advances a variant of this contention, maintaining that a "two-test" approach to the employee or independent contractor distinction would invariably lead to inconsistent determinations for disparate claims under different labor statutes brought by the same individual. Any potential inconsistency, however, arises from the IWC's determination that it is appropriate to apply a distinct and particularly expansive definition of employment regarding obligations imposed by a wage order. Under Martinez , supra , 49 Cal.4th 35 , 109 Cal.Rptr.3d 514 , 231 P.3d 259 , the potential inconsistent results to which Dynamex objects could equally arise in the joint employer context: a third party that has a relationship to a worker's primary employer could be found to be a joint employer for purposes of the obligations imposed by a wage order, even when the third party may not constitute a joint employer for other purposes.

Moreover, because the Borello standard itself emphasizes the primacy of statutory purpose in resolving the employee or independent contractor question, when different statutory schemes have been enacted for different purposes, it is possible under Borello that a worker may properly be considered an employee with reference to one statute but not another. (Accord People v. Superior Court ( Sahlolbei ) (2017) 3 Cal.5th 230 , 235-245, 219 Cal.Rptr.3d 436 , 396 P.3d 568 .) Further, because the applicable federal wage and hour law-the Fair

individual to work for the business. A literal application of the suffer or permit to work standard, therefore, would bring within its reach even those individuals hired by a business-including unquestionably independent plumbers, electricians, architects, sole practitioner attorneys, and the like-who provide only occasional services unrelated to a company's primary line of business and who have traditionally been viewed as working in their own independent business. For this reason, Dynamex maintains that the Borello standard is the only

The suffer or permit

The adoption of the exceptionally broad suffer or permit to work standard in California wage orders finds its justification in the fundamental purposes and necessity of the

wide scale throughout the nation. The purpose is to raise living standards. This purpose will fail of realization unless the Act has sufficiently broad coverage to eliminate in large measure ... the competitive advantage accruing from savings in costs based upon substandard labor conditions. Otherwise the Act will be ineffective, and will penalize those who practice fair labor standards as against those who do not"].) Finally, the minimum employment standards imposed by wage orders are also for the benefit of the public at large, because if the wage orders' obligations are not fulfilled the public will often be left to assume responsibility for the ill effects to workers and their families resulting from substandard wages or unhealthy and unsafe working conditions.

Given the intended expansive reach of the suffer or permit to work standard as reflected by its history, along with the more general principle that wage orders are the type of remedial legislation

developed what is generally described as the "economic reality" test for determining whether a worker should be considered an employee or independent contractor for purposes of the FLSA-namely, whether, as a matter of economic reality, the worker is economically dependent upon and makes a living in another's business (in which case he or she is considered to be a covered employee) or, instead is in business for himself or herself (and may properly be considered an excluded independent contractor). (See, e.g., Whitaker House Co-op , supra , 366 U.S. 28 , 33, 81 S.Ct. 933 ; Alamo Foundation , supra , 471 U.S. 290 , 301, 105 S.Ct. 1953 .) In applying the economic reality test, federal courts have looked to a list of factors that is briefer than, but somewhat comparable to, the list of factors considered in the pre- Borello California decisions and in Borello itself. (See, e.g., Superior Care , supra , 840 F.2d at p. 1059 ; Lauritzen , supra , 835 F.2d at pp. 1534-1535.) Furthermore, like Borello , federal FLSA decisions applying the economic reality standard have held that no one factor is determinative and that the ultimate decision whether a worker is to be found to be an employee or independent contractor for purposes of the FLSA should be based on all the circumstances. ( Rutherford Food , supra , 331 U.S. at p. 730, 67 S.Ct. 1473 ; Scantland , supra , 721 F.3d at pp. 1312-1313 ;

The

2. Part B: Does the worker perform work that is outside the usual course of the hiring entity's business?

Second, independent of the question of control, the child labor antecedents of the suffer or permit to work language demonstrate that one principal objective of the suffer or permit to work standard is to bring within the "employee" category all individuals who can reasonably be viewed as working " in the [hiring entity's] business " (see Martinez , supra , 49 Cal.4th at p. 69, 109 Cal.Rptr.3d 514 , 231 P.3d 259 , italics added ), that is, all individuals who are reasonably viewed as providing services to the business in a role comparable to that of an employee, rather than in a role comparable to that of a traditional independent contractor. (Accord Rutherford Food , supra , 331 U.S. at p. 729, 67 S.Ct. 1473 [under FLSA, label put on relationship by hiring business is not controlling and inquiry instead focuses on whether "the work done, in essence, follows the usual path of an employee" ].) Workers whose roles are most clearly comparable to those of employees include individuals whose services are provided within the usual course of the business of the entity for which the work is performed and thus who would ordinarily be viewed by others as working in the hiring entity's business and not as working, instead, in the worker's own independent business.

Thus, on the one hand, when a retail store hires an outside plumber to repair a leak in a bathroom on its premises or hires an outside electrician to install a new electrical line, the services of the plumber or electrician are not part of the store's usual course of business and the store would not reasonably be seen as having suffered or permitted the plumber or electrician to provide services to it as an employee. (See, e.g., Enforcing Fair Labor Standards , supra , 46 UCLA L.Rev. at p. 1159.) On the other hand, when a clothing manufacturing company hires work-at-home seamstresses to make dresses from cloth and patterns supplied by the company that will thereafter

be sold by the company (cf., e.g., Silent Woman, Ltd. , supra , 585 F.Supp. at pp. 450-452 ; accord Whitaker House Co-op , supra , 366 U.S. 28 , 81 S.Ct. 933 ), or when a bakery hires cake decorators to work on a regular basis on its custom-designed cakes (cf., e.g., Dole v. Snell (10th Cir. 1989) 875 F.2d 802 , 811 ), the workers are part of the hiring entity's usual business operation and the hiring business can reasonably be viewed as having suffered or permitted the workers to provide services as employees. In the latter settings, the workers' role within the hiring entity's usual business operations is more like that of an employee than that of an independent contractor.

Treating all workers whose services are provided within the usual course of the hiring entity's business as employees is important to ensure that those workers who need and want the fundamental protections afforded by the wage order do not lose those protections. If the wage order's obligations could be avoided for workers who provide services in a role comparable to employees but who are willing to forgo the wage order's protections, other workers

the prohibitions or responsibilities

B. Application of the Suffer or Permit to Work Standard in This Case

We now turn to application of the suffer or permit to work standard in this case. As

tracking and recordkeeping system. As such, there is a sufficient commonality of interest regarding whether the work performed by the certified class of drivers who pick up and deliver packages and documents from and to Dynamex customers on an ongoing basis is outside the usual course of Dynamex's