ADJ7608312 · December 23, 2024

The Board found that applicant was rendering services for Cabco Yellow at the time of injury, thus the presumption of employment under Labor Code section 3357 attached. Defendant failed to overcome this presumption by showing applicant was an independent contractor, as Cabco exercised control over multiple facets of applicant's work consistent with an employer-employee relationship.

From the decision · page 1Applicant seeks reconsideration of the November 3, 2022 Findings of Fact, wherein the workers' compensation administrative law judge (WCJ) found that applicant was an independent contractor and not an employee of defendant.

Applicant was rendering services for Cabco Yellow at the time of injury, establishing the presumption of employment under Labor Code section 3357

Favours Applicant prevailed

This fact triggered the presumption of employment, shifting the burden to defendant to prove independent contractor status

From the decision · page 5The evidence thus supports a determination that Cabco's business was not limited to the leasing of vehicles and dispatch equipment. Rather, Cabco operated a fleet of cabs for public carriage, and its drivers as active instruments of that enterprise provided an indispensable "service" to Cabco. Just as in Edwinson, "the enterprise could no more survive without [its drivers] than it could without working cabs." (Edwinson, supra, at p. 1293.) Pursuant to sections 3357 and 5705(a), we therefore conclude that applicant rendered a service to Cabco, and that the presumption of employment attaches, accordingly.

Cabco Yellow exercised control over multiple facets of applicant's work, including appearance, conduct, and regulatory compliance

Favours Applicant prevailed

This control demonstrated an employer-employee relationship, defeating defendant's claim of independent contractor status

From the decision · page 8of Hearing and Summary of Evidence, dated January 22, 2020, at p. 10:2.) Cabco further received updates from the Department of Motor Vehicles pursuant to a "Release of Driver Record Information." (Ex. 15, DMV Employer Pull Notice Program, dated August 23, 2010, at p. 3.) The record thus supports applicant's contention that Cabco exercised control over multiple facets of its drivers' appearance and performance, and participation in various regulatory requirements necessary to the operation of its business. Based on the foregoing considerations, we are persuaded that defendant's multi-faceted control over daily activities of its drivers overcomes the assertion of an independent contractor relationship. (Borello, supra, 48 Cal.3d at 351.) We therefore conclude that defendant has not rebutted the presumption of employment of section 3357.

Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522; S.G. Borello & Sons, Inc. v. Department of Ind. Rel. (1989) 48 Cal.3d 341

Common law right to control test for employment relationship

The principal test is whether the hirer has the right to control the manner and means of accomplishing the work

From the decision · page 5Under the common law, "[t]he principal test of an employment relationship is whether the person to whom service is rendered has `the right to control the manner and means of accomplishing the result desired...'" (Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522 [79 Cal.Comp.Cases 760, 764] (Ayala), quoting S.G. Borello & Sons, Inc. v. Department of Ind. Rel. (1989) 48 Cal.3d 341 [54 Cal.Comp.Cases 80] (Borello).) Section 3353 defines an independent contractor as "any person who renders service for a specified recompense

Labor Code sections 3357 and 5705

Presumption of employment under Labor Code section 3357 and burden shifting under section 5705(a)

Applicant must first prove rendering services to employer, then employer must prove independent contractor status to rebut presumption

From the decision · page 3Section 5705 provides, in relevant part:

Applicant testimony and evidence that Cabco controlled drivers' appearance, conduct, and regulatory compliance

From the decision · page 5Cabco's distinctive markers and/or color schemes. (Minutes of Hearing and Summary of Evidence, dated March 29, 2022, at p. 4:14). Cabco entered into various joint ventures at area destinations to promote its business enterprise. (Id. at p. 6:10.) This included a joint venture with the County of Orange at the John Wayne Airport. (Minutes of Hearing and Summary of Evidence, dated January 22, 2020, at p. 9:21.) Cabco instructed its drivers in etiquette, noting its drivers had "daily face to face contact with the customers of California Yellow Cab," and that "the way our customers perceive you is the way they perceive California Yellow Cab." (Ex. 22, Yellow Cab Driver's Training Guides, dated October 7, 2019, at p. 5; see also Minutes of Hearing and Summary of Evidence, dated January 22, 2020, at p. 7:16.) Cabco's training manual notes that "our Taxi service is the best in Orange County because we know first and foremost that our customers have a choice in companies to call." (Id. at p. 6.) Drivers are instructed to "always project an image that you are a courteous professional driver that everyone in our company can be proud of." (Id. at p. 5.) The training manual concludes, "we are relying on you to be the best driver on the road don't let us down." (Ibid.)