Kevin F. Ruf

The proliferation of arbitration provisions and cases becoming harder to develop and taking longer to resolve are some recent challenges Ruf has encountered and overcome.

“I have become more patient,” he said.

Ruf recently had a California Supreme Court victory while representing drivers for package and document delivery company Dynamex Operations West Inc. Ruf presented oral argument to the high court panel, and the justices adopted the three-pronged “ABC” test for determining whether a worker should be classified as an independent contractor for claims arising under California’s wage orders. Dynamex Operations West, Inc. v. Superior Court, 2018 DJDAR 3856 (Cal. April 30, 2018).

It was Ruf’s second state Supreme Court case and second win. His first one in 2006, Smith v. L’Oreal USA Inc., established the right of immediate payment after “termination” with his client filing suit against the cosmetic giant over not being paid immediately for a modeling gig.

“There is a lot of excitement about this decision,” Ruf said of Dynamex. “I have had lawyers whom I don’t know reach out and tell me how they think this will do so much good for workers. There is a wide perception, certainly among plaintiff lawyers and, dare I say, ‘regular’ folks, that the use of independent contractor status has been abused by hirers.”

The Dynamex case is the first new test for independent contractor status in California in nearly 30 years. Under the “ABC” test, there is a presumption that individuals are employees and the hiring entity bears the burden to establish that the worker is an independent contractor by showing each of the following: (A) the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work, and in fact; and (B) the worker performs work that is outside the usual course of the hiring entity’s business; and (C) the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed. This ruling is expected to have wide-ranging effects on worker protections in California, and experts believe that this decision will expand the number of workers eligible for minimum wage, rest breaks and other benefits provided under state law. This ruling may also change whether drivers for Uber Technologies Inc. and Lyft Inc., as well as other gig workers, can continue to be classified as independent contractors.

Ruf said he has a “number of cases” that he is excited about but is particularly focused on a case that is currently in pre-filing, which involves issues similar to the Ibarra v. Wells Fargo case, where U.S. District Judge Percy Anderson of the Central District awarded $97 million to mortgage consultants.

“Not surprisingly, I am also getting a lot of calls about claims of misclassified independent contractors since Dynamex came down,” he said.

— Matt Sanderson