The Ninth Circuit recently reviewed a district court’s handling of a class action involving claims of employment misclassification. Bowerman v. Field Asset Services, Inc. is instructive for at least two reasons: It provides guidance on how corporate defendants in employment misclassification class actions can defend themselves and further analyzes the different tests trial courts can employ for determining liability under such claims — Dynamex’s so-called ABC Test or its predecessor, the multifactor Borello test.
Fred and Julia Bowerman led a class of independent contractors who performed work in California on behalf of the defendant Field Asset Services, Inc. (FAS). FAS is in the business of “pre-foreclosure property preservation services” but does not conduct the work itself. Rather, it retains third-party independent contractors or “vendors” — some of whom are sole proprietorships and others that are corporations with their own employees.
In 2013, Bowerman sued FAS claiming that FAS misclassified him and his fellow class members as independent contractors rather than employees. Four years later in March 2017, the U.S. District Court for the Northern District of California certified the class, granted the plaintiffs partial summary judgment on liability, and left damages for trial. Indetermining whether Bowerman was an independent contractor or employee, the district court applied the common law test established in S.G. Borello & Sons, Inc. v. Dept. of Indus....
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