By: Christina Trueba, Executive Notes and Comments Editor, J.D. Candidate, May 2019, St. Thomas University School of Law.

Many of us are familiar with convenient online and app services like Postmates, Uber, Airbnb, and Grubhub, just to name a few. These companies follow a gig economy employment model. A gig economy “refers to a general workforce environment in which short-term engagements, temporary contracts, and independent contracting is commonplace.” Often times gig economy employment can result in full-time employment, although normally it is part-time.

Recently, a former Grubhub driver, Raef Lawson (“Lawson”), asked the 9th Circuit to revive his lawsuit in which he asserted that Grubhub deprived him of legal protections for employees. Lawson’s position was that he is an employee and not independent contractor, and under California law, Grubhub is required to pay their employees “minimum wage and overtime and reimburse them for expenses.” The test that the court used to determine if there was an employment relationship between Lawson and Grubhub was set forth in S.G. Borello & Sons, Inc. v. Department of Industrial Relations, which asks “whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired.” 48 Cal.3d 341, 256 Cal.Rptr. 543, 769 P.2d 399 (1989). The Northern District of California held that Lawson was an independent contractor rather than an employee of Grubhub because he had control over his hours, his deliveries, as well as his attire.

Although Lawson has appealed, another case is currently being heard by California’s highest court, Dynamex Operations West v. Superior Court. Similar to Lawson’s case, in Dynamex, couriers are trying to establish that they are employees and not just independent delivery personnel. The court in Dynamex is using the standard which assumes all employees are workers until proven otherwise. If the couriers prevail, Lawson’s chances of success will increase and perhaps lead to a ruling that the drivers for these companies are not independent contractors, but rather employees that should be afforded employment rights and protections.