A California court of appeal refused to apply the expansive ABC independent contractor test adopted by the California Supreme Court in Dynamex1 to non-wage order issues, such as claims related to overtime, wrongful termination, and waiting time penalties.2
However, it did apply the ABC test to the wage order claims to find that the worker was an employee for purposes of the claims related to unpaid wages, failure to pay minim wage, failure to provide meal and rest periods, and failure to furnish itemized wage statements. The court ruled that it was possible to have a worker deemed an employee as to the wage order claims and as an independent contractor to nonwage-related claims.
1 Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903
2 Garcia v. Border Transportation Group, LLC (October 22, 2018) Cal. Ct. App., Fourth App. Dist., Case No. D072521