Joan B. Tucker Fife

Fife, Winston & Strawn’s managing partner in San Francisco, has more than 30 years’ experience litigating employment matters and has served as first chair in more than 50 class or collective actions nationwide.

She said watching the law change is an intriguing part of her job, as when the state Supreme Court issued its landmark ruling in April on a chief concern of employment law, the distinction between whether a worker is classified as an employee or as an independent contractor.

The decision in Dynamex Operations West v. Superior Court, S222732, adopted a simplified “ABC” test that is used in other states to establish the degree of control a company exerts over workers.

“Does the Dynamex decision significantly change the practice? Not necessarily,” she said. From her defense perspective, in which misclassification claims by plaintiffs are routine, the decision does not settle whether cases can be tried on a class basis. Instead, its ABC test holds that businesses seeking to avoid liability by classifying workers as independent contractors, must show that A, the worker is free from the control and direction of the employer; B, the worker performs tasks outside the usual course of the employer’s business and C, that the worker is engaged in an independently established trade.

“Applying the Dynamex standards continues to require an individual assessment of what each individual does to determine whether the individual independent contractor can be deemed an employee,” Fife said. “Companies still have avenues to argue that an independent contractor misclassification case not be certified.”

— John Roemer