Nichelle Duffey v. Tender Heart Home Care Agency, LLC

Plaintiff Nichelle Duffey (Plaintiff) sued defendant Tender Heart Home Care

Agency, LLC (Tender Heart) for, among other claims, failure to pay overtime wages

under the Domestic Worker Bill of Rights (Labor Code, §§ 1450 et seq.; DWBR),

which requires that domestic work employees receive overtime wages for all hours worked

more than nine hours per day or 45 hours per week. The trial court granted Tender

Heart’s motion for summary adjudication on the DWBR cause of action, finding the

undisputed facts demonstrated Plaintiff was an independent contractor rather than an

employee of Tender Heart for purposes of the DWBR. We first conclude the trial court

erred in exclusively applying the so-called “common law” test set forth in S. G. Borello

& Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 (Borello), to

determine the issue. We next conclude that, under the appropriate tests, there is a dispute

of fact as to whether Plaintiff was Tender Heart’s employee. Accordingly, we reverse

and remand.



1 All undesignated section references are to the Labor Code.



FACTUAL BACKGROUND

In 2011, Plaintiff signed a form contract with Tender Heart titled “Professional

Caregiver Agreement” (the Caregiver Contract). The Caregiver Contract states that

Tender Heart “is a caregiver placement agency whose business is to obtain contracts for

caregivers in dwellings and to refer by subcontract such contracts to professional

independent caregivers.” The Caregiver Contract further states Plaintiff is “an

independent contractor” and “an independent domestic worker, who is in the business of

providing care giving services in dwellings and hereby solicits such contract for services

from [Tender Heart].” Tender Heart also enters into contracts with clients.2

Its standard

client contract (the Client Contract) provides that Tender Heart “is engaged in the

business of qualifying, screening and referring caregivers,” and “is dedicated to matching

the right caregivers to each client’s needs.”

Judy Horvath, Tender Heart’s managing member, testified in her deposition that

when contracting with a new client, Tender Heart “ascertain[s] the needs of the client, the

brief medical history, so we know what’s going on with this particular person that we’re

caring for, and what they would like the caregiver to do; what their needs are. . . . [W]e

have to ascertain the need before we can relay those to our caregivers.” The standard

services provided by Tender Heart caregivers, as set forth in both the Caregiver Contract

and the Client Contract, are “companionship and conversation; attendant care; respite

care; personal care, grooming and hygiene; medication reminders; light housekeeping;

bathing assistance; meal planning and preparation; grocery shopping and errands;

transportation; escort to breakfast, lunch or dinner; answer telephone and door; help sort

mail; oversee home deliveries; attend social or religious activities.” (Capitalization and

formatting altered.)

Both the Caregiver Contract and the Client Contract attach rate sheets setting forth

standard hourly rates for shifts of different lengths. The client rate sheet states its rates



2 We use the term “client” to refer both to the person in need of caregiving services and

the person responsible for paying Tender Heart (sometimes, but not always, the same

person).

3

include both “caregiver and agency fees,” and the standard hourly rates charged to clients

are higher than the standard hourly pay rates for caregivers. Caregivers submit

timesheets signed by the client to Tender Heart; Tender Heart then bills the client and

pays caregivers from the money received from the client, keeping the difference as its

fee. Horvath testified the Client Contract rate sheet was a starting point but the ultimate

rate charged to a given client could vary. Plaintiff testified in her deposition that when

Tender Heart told her about a caregiving opportunity, “I would get an e-mail and there

would be a rate that I would be getting paid for that job. They [the rates] would vary,

depending on the needs of the client.” The parties dispute whether caregivers could

negotiate their pay rates directly with clients; we discuss this evidence in more detail

below (post, part II.C.1).

3

It is undisputed that Tender Heart caregivers are free to reject any caregiving

opportunity offered by Tender Heart, and Plaintiff did reject offers from time to time.

Caregivers are also free to contract with other agencies for domestic work, and Plaintiff

did so during her time working for Tender Heart. Tender Heart did not provide Plaintiff

or other caregivers with training, tools, or supplies, and did not direct or supervise the

caregiver’s provision of services.

The Caregiver Contract provides: “The relationship between a CAREGIVER and

client may only be terminated by either of those parties and not by [Tender Heart].

However, [Tender Heart] may decline to make additional referrals to a particular

CAREGIVER . . . .” The Caregiver Contract, by its terms, remains in effect until notice

of termination by either party or a caregiver’s “material breach” including “[d]ischarge

. . . by client for just cause,” or “[a]t the direction of the client” where the caregiver



3

The Caregiver Contract also provides caregivers may elect to seek “permanent

placement,” paying Tender Heart a fee of “20% of the fees earned by CAREGIVER

during the first month of placement.” The Client Contract similarly includes terms for

caregiver permanent placement, whereby Tender Heart arranges interviews between the

client and prospective caregivers for a one-time flat fee. There is no evidence that

Plaintiff sought or received permanent placement from Tender Heart.

4

“failed to appear to perform services as scheduled.” Plaintiff provided Tender Heart with

notice of termination in or around March 2015.

When Plaintiff signed the Caregiver Contract in 2011, caregivers were (as they

still are) excluded from the overtime provisions of the applicable Industrial Welfare

Commission (IWC) wage order. (See IWC Order No. 15-2001 Regulating Wages,

Hours, and Working Conditions in the Household Occupations (Wage Order 15),

codified at Cal. Code Regs., tit. 8, § 11150, subds. 1(B), 2(J), 3(C) [excluding from its

overtime provision “any person employed by a private householder or by any third party

employer recognized in the health care industry to work in a private household, to

supervise, feed, or dress a child or person who by reason of advanced age, physical

disability, or mental deficiency needs supervision”].) Effective January 1, 2014, the

Legislature enacted the DWBR, which provides that certain workers, including

caregivers, “shall not be employed more than nine hours in any workday or more than 45

hours in any workweek unless the employee receives one and one-half times the

employee’s regular rate of pay for all hours worked over nine hours in any workday and

for all hours worked more than 45 hours in the workweek.” (§ 1454.) After the

enactment of the DWBR, Tender Heart did not pay Plaintiff overtime wages.

PROCEDURAL BACKGROUND

In December 2015, Plaintiff filed a complaint against Tender Heart. The operative

first amended complaint alleged Tender Heart failed to pay overtime wages in violation

of the DWBR, as well as several additional claims. Tender Heart moved for summary

adjudication of the DWBR claim and some of Plaintiff’s additional claims.4 As relevant

here, Tender Heart sought summary adjudication on the ground that it was a nonemployer

employment agency pursuant to Civil Code section 1812.5095, subdivision (b),

and, alternatively, on the ground that Plaintiff was an independent contractor, not an

employee of Tender Heart.



4

The parties characterize these additional claims as derivative of the DWBR claim.

Because no party contends a different analysis applies to the derivative claims, we do not

discuss them separately.

5

The trial court denied summary adjudication on the first ground, finding Tender

Heart failed to comply with all of the statutory requirements for non-employer

employment agencies. However, the court granted summary adjudication on the second

ground, applying the Borello standard for distinguishing between employees and

independent contractors, and concluding the undisputed facts established Plaintiff was an

independent contractor.

The court subsequently granted Tender Heart’s separate motion for summary

adjudication on Plaintiff’s remaining claims. Judgment issued for Tender Heart, and this

appeal followed.5

DISCUSSION

I. Standard of Review

“Summary adjudication motions are ‘procedurally identical’ to summary judgment

motions. [Citation.] A summary judgment motion ‘shall be granted if all the papers

submitted show that there is no triable issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.’ [Citation.] To be entitled to judgment

as a matter of law, the moving party must show by admissible evidence that the ‘action

has no merit or that there is no defense’ thereto. [Citation.] A defendant moving for

summary judgment meets this burden by presenting evidence demonstrating that one or

more elements of the cause of action cannot be established or that there is a complete

defense to the action. [Citations.] Once the defendant makes this showing, the burden

shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of

action or defense. [Citations.] Material facts are those that relate to the issues in the case

as framed by the pleadings. [Citation.] There is a genuine issue of material fact if, and

only if, the evidence would allow a reasonable trier of fact to find the underlying fact in



5

Plaintiff does not challenge on appeal the trial court’s second summary adjudication

order on her non-DWBR claims. Tender Heart argues Plaintiff’s opening brief on appeal

fails to comply with California Rules of Court, rule 8.204(a)(2)(C). We exercise our

discretion to disregard any noncompliance. (Id., rule 8.204(e)(2)(C).)

6

favor of the party opposing the motion in accordance with the applicable standard of

proof.” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 859–860 (Serri).)

“The trial court’s ruling on a motion for summary adjudication, like that on a

motion for summary judgment, is subject to this court’s independent review.” (Serri,

supra, 226 Cal.App.4th at p. 858.) “In performing our review, we view the evidence in a

light favorable to the losing party . . . , liberally construing her evidentiary submission

while strictly scrutinizing the moving party’s own showing and resolving any evidentiary

doubts or ambiguities in the losing party’s favor.” (Id. at p. 859.)6

II. Independent Contractor or Employee

The DWBR’s overtime provision applies to “domestic work employee[s].”

(§ 1454.) Tender Heart contends Plaintiff was not an employee, but instead was an

independent contractor to whom the overtime requirement did not apply.7





6

Tender Heart argues Plaintiff submitted only minimal evidence in opposition to its

summary adjudication motion and suggests she therefore failed to demonstrate a dispute

of fact; Tender Heart further contends Plaintiff waived any argument that Tender Heart’s

evidence did not satisfy its initial burden on summary adjudication. The quantity of

Plaintiff’s opposition evidence and any failure to expressly contest Tender Heart’s initial

burden are of no moment. “The fact no opposition [to a summary judgment motion] has

been filed does not relieve the judge (or the appellate court) from the duty to draw all

inferences reasonably deducible from the evidence before the court.” (Weil & Brown,

Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) ¶ 10:303,

p. 10-138.) The moving party’s evidence alone may establish a triable issue of fact. (See

id., ¶ 10:304, p. 10-138 [“The opposing party has no burden to controvert the moving

party’s declarations if such declarations themselves, through inferences reasonably drawn

therefrom, disclose a ‘triable issue’ of fact.”].) Finally, although both parties cite

evidence submitted in connection with Tender Heart’s second summary adjudication

motion on non-DWBR claims, we cannot and do not consider such evidence, which was

not before the trial court at the time of the challenged order. (California Farm Bureau

Federation v. State Water Resources Control Bd. (2011) 51 Cal.4th 421, 442 [“ ‘[I]t has

long been the general rule and understanding that “an appeal reviews the correctness of a

judgment as of the time of its rendition, upon a record of matters which were before the

trial court for its consideration.” ’ ”].)

7

Tender Heart contends some claims in Plaintiff’s complaint were impermissibly

factually inconsistent with the DWBR claims because, as to the remaining claims,

Plaintiff did not incorporate the factual allegation that she was Tender Heart’s employee.

7

A. What Standard Applies

Plaintiff argues the trial court erred in applying the standard articulated in Borello

to determine whether Plaintiff was an independent contractor or an employee. Instead,

Plaintiff contends, the appropriate standard is the one set forth in the DWBR itself.

Tender Heart argues the trial court properly applied the Borello standard. We agree with

Plaintiff that we must look to the DWBR for the applicable standard.

In Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903

(Dynamex), our Supreme Court recently provided “a historical review of the treatment of

the employee or independent contractor distinction under California law.” (Id. at p. 927.)

The court began with a discussion of the common law origins of the distinction. “[A]t

common law the problem of determining whether a worker should be classified as an

employee or an independent contractor initially arose in the tort context—in deciding

whether the hirer of the worker should be held vicariously liable for an injury that

resulted from the worker’s actions. In the vicarious liability context, the hirer’s right to

supervise and control the details of the worker’s actions was reasonably viewed as

crucial, because ‘ “[t]he extent to which the employer had a right to control [the details of

the service] activities was . . . highly relevant to the question whether the employer ought

to be legally liable for them . . . .” ’ [Citation.] For this reason, the question whether the

hirer controlled the details of the worker’s activities became the primary common law

standard for determining whether a worker was considered to be an employee or an

independent contractor.” (Ibid.)



To the extent the contention is relevant to the issue before us, we reject it. That Plaintiff

did not incorporate the allegation in some causes of action is not inconsistent with the

presence of the allegation elsewhere in the complaint; in any event, whether Plaintiff was

an employee is a legal conclusion, not a fact. (See Weil & Brown, Cal. Practice Guide:

Civil Procedure Before Trial, supra, ¶¶ 6:247.1, 6:248, p. 6-79 [“For the bar on

inconsistent fact pleading to apply, the facts must be ‘antagonistic,’ ” and the bar “applies

to facts, not legal conclusions to be drawn from the facts (such as whether the parties had

an agency relationship or instead that of buyer and seller).”].)

8

Dynamex then discussed Borello, supra, 48 Cal.3d 341, which considered the

distinction between independent contractors and employees “for purposes of the

California workers’ compensation statutes.” (Dynamex, supra, 4 Cal.5th at p. 929.)

Borello explained “that ‘the concept of “employment” embodied in the [workers’

compensation act] is not inherently limited by common law principles’ ” and instead

“ ‘must be construed with particular reference to the “history and fundamental

purposes” of the statute.’ ” (Dynamex, at p. 930 [quoting Borello, at p. 351].) While

Borello applied the common law “ ‘ “control-of-work-details” test,’ ” identifying multiple

relevant factors to consider, it held that test “ ‘must be applied with deference to the

purposes of the protective legislation.’ ” (Dynamex, at pp. 930–932 [quoting Borello, at

pp. 353–354].) Dynamex concluded that, “although we have sometimes characterized

Borello as embodying the common law test or standard for distinguishing employees and

independent contractors [citation], it appears more precise to describe Borello as calling

for resolution of the employee or independent contractor question by focusing on the

intended scope and purposes of the particular statutory provision or provisions at issue.

In other words, Borello calls for application of a statutory purpose standard that considers

the control of details and other potentially relevant factors identified in prior California

and out-of-state cases in order to determine which classification (employee or

independent contractor) best effectuates the underlying legislative intent and objective of

the statutory scheme at issue.” (Dynamex, at p. 934.)

Dynamex next considered Martinez v. Combs (2010) 49 Cal.4th 35 (Martinez),

which “address[ed] the meaning of the terms ‘employ’ and ‘employer’ as used in

California wage orders” promulgated by the IWC. (Dynamex, supra, 4 Cal.5th at p. 935.)

The wage orders provide that “ ‘ “[e]mploy” means to engage, suffer, or permit to

work’ ” and “ ‘ “[e]mployer” means any person . . . who directly or indirectly, or through

an agent or any other person, employs or exercises control over the wages, hours, or

working conditions of any person.’ ” (Id. at p. 926 & fn. 9.) Martinez concluded the

wage orders set forth “ ‘three alternative definitions’ ” for employment. (Dynamex, at

p. 938 [quoting Martinez, at p. 64].) The first—“suffer[] or permit to work”—derived

9

from early child labor statutes, and “had been interpreted to impose liability upon an

entity ‘even when no common law employment relationship existed . . . .’ ” (Dynamex,

at p. 937 [quoting Martinez, at p. 58].) The second—“control over the wages, hours, or

working conditions”—“ ‘has no clearly identified, precisely literal statutory or common

law antecedent,’ ” but by its terms encompassed joint employer scenarios and was

intended to “provid[e] workers with greater protection” than federal labor laws.

(Dynamex, at pp. 937–938 [quoting Martinez, at pp. 59–60].) The third alternative

definition—“to engage”—“ ‘has no other apparent meaning in the present context than its

plain, ordinary sense of “to employ,” that is, to create a common law employment

relationship.’ ” (Dynamex, at p. 938 [quoting Martinez, at p. 64].) As explained in

Dynamex, “the court in Martinez . . . took pains to emphasize the importance of not

limiting the meaning and scope of ‘employment’ to only the common law definition for

purposes of the IWC’s wage orders, declaring that ‘ignoring the rest of the IWC’s broad

regulatory definition would substantially impair the commission’s authority and the

effectiveness of its wage orders. . . . Were we to define employment exclusively

according to the common law in civil actions for unpaid wages we would render the

commission’s definitions effectively meaningless.’ ” (Dynamex, at pp. 938–939 [quoting

Martinez, at p. 65].)

In Dynamex itself, the Supreme Court interpreted the “suffer or permit” language

in the wage orders. (Dynamex, supra, 4 Cal.5th at p. 943.) After considering the history

and interpretation of the language, the Supreme Court concluded “it is appropriate, and

most consistent with the history and purpose of the suffer or permit to work standard in

California’s wage orders, to interpret that standard as: (1) placing the burden on the

hiring entity to establish that the worker is an independent contractor who was not

intended to be included within the wage order’s coverage; and (2) requiring the hiring

entity, in order to meet this burden, to establish each of the three factors embodied in the

ABC test—namely (A) that 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) that the worker performs work that is

10

outside the usual course of the hiring entity’s business; and (C) that the worker is

customarily engaged in an independently established trade, occupation, or business of the

same nature as the work performed.” (Id. at pp. 956–957, fn. omitted.)

Dynamex thus “recognized that different standards could apply to different

statutory claims.” (Garcia v. Border Transportation Group, LLC (2018) 28 Cal.App.5th

558, 570.) “[S]tatutory purpose [is] the touchstone for deciding whether a particular

category of workers should be considered employees rather than independent contractors

for purposes of social welfare legislation.” (Dynamex, supra, 4 Cal.5th at p. 935.) We

therefore conclude that the distinction between independent contractor and employer for

purposes of the DWBR must be determined by examining the language and purpose of

the DWBR itself.

8



B. The DWBR

The DWBR’s sole substantive provision provides: “A domestic work employee

who is a personal attendant shall not be employed more than nine hours in any workday

or more than 45 hours in any workweek unless the employee receives one and one-half

times the employee’s regular rate of pay for all hours worked over nine hours in any

workday and for all hours worked more than 45 hours in the workweek.” (§ 1454.)9





8

Tender Heart’s reliance on Linton v. Desoto Cab Company, Inc. (2017) 15 Cal.App.5th

1208 (Linton), which applied Borello’s test to determine whether the plaintiff was an

employee or independent contractor for purposes of his Labor Code claims, is unavailing.

Linton issued while Dynamex was pending, and a concurring justice noted that “as the

parties have briefed and argued the matter, we are concerned only with the scope of the

common law test” and not with “whether the ‘additional tests for employee status’ set

forth in wage orders apply to wage claim cases [citation], an issue now pending before

the court in Dynamex . . . .” (Linton, at p. 1226 & fn. 1 (conc. opn. of Banke, J.).)

Tender Heart’s reliance on Reynolds v. Bement (2005) 36 Cal.4th 1075 is similarly

unpersuasive, in light of Martinez’s limitation of its holding. (Martinez, supra, 49

Cal.4th at pp. 62–66.)

9

The DWBR also requires the Governor to convene a committee to study the effects of

the DWBR “on personal attendants and their employers.” (§ 1453.) A provision in the

original bill sunsetting the DWBR in 2017 was subsequently repealed. (Former § 1453

[enacted by stats. 2013, ch. 374, § 1; repealed by stats. 2016, ch. 315, § 1].)

11

“ ‘Personal attendant’ means any person employed by a private householder or by any

third-party employer recognized in the health care industry to work in a private

household, to supervise, feed, or dress a child, or a person who by reason of advanced

age, physical disability, or mental deficiency needs supervision. The status of personal

attendant shall apply when no significant amount of work other than the foregoing is

required. For purposes of this subdivision, ‘no significant amount of work’ means work

other than the foregoing did not exceed 20 percent of the total weekly hours worked.”

(§ 1451, subd. (d).)10

The DWBR’s definition of personal attendant appears designed to

precisely match those employees excluded from Wage Order 15’s overtime provision.

(See Wage Order 15, Cal. Code Regs., tit. 8, § 11150, subds. 1(B), 2(J), 3(C) [excluding

“personal attendants” from overtime protections, defined as “any person employed by a

private householder or by any third party employer recognized in the health care industry

to work in a private household, to supervise, feed, or dress a child or person who by

reason of advanced age, physical disability, or mental deficiency needs supervision. The

status of personal attendant shall apply when no significant amount of work other than

the foregoing is required.”]; Guerrero v. Superior Court (2013) 213 Cal.App.4th 912,

956 [noting the Department of Labor Standards Enforcement has issued a formal opinion

letter stating that “a ‘significant amount’ of work . . . is that exceeding 20 percent of the

total hours worked”].)

The DWBR provides the following additional definitions. “ ‘Domestic work

employee’ means an individual who performs domestic work[11]

and includes live-in

domestic work employees and personal attendants.” (§ 1451, subd. (b)(1).) The statute

lists several exceptions not relevant here, including close relatives and casual babysitters.



10 Tender Heart does not dispute that Plaintiff was a personal attendant within the

meaning of the DWBR.

11 “ ‘Domestic work’ means services related to the care of persons in private households

or maintenance of private households or their premises. Domestic work occupations

include childcare providers, caregivers of people with disabilities, sick, convalescing, or

elderly persons, house cleaners, housekeepers, maids, and other household occupations.”

(§ 1451, subd. (a)(1).)

12

(§ 1451, subd. (b)(2).) “ ‘Domestic work employer’ means a person, including corporate

officers or executives, who directly or indirectly, or through an agent or any other person,

including through the services of a third-party employer, temporary service, or staffing

agency or similar entity, employs or exercises control over the wages, hours, or working

conditions of a domestic work employee.” (§ 1451, subd. (c)(1).)12

Again, the statute

sets forth several exceptions, including, as we will discuss in more detail post, part III,

employment agencies that meet certain specifications. (§ 1451, subd. (c)(2).) The

DWBR does not define the term “employ” or include a definition of “independent

contractor.”

As an initial matter, we observe that the DWBR’s definition of employer differs

from that of the wage orders. In one respect—albeit one not relevant here—the DWBR is

broader: it expressly includes “corporate officers or executives” in the definition of

employer, while “the IWC’s definition of ‘employer’ does not impose liability on

individual corporate agents acting within the scope of their agency.” (Martinez, supra,

49 Cal.4th at p. 66.) In another respect, the DWBR’s definition of employer appears to

be narrower: the DWBR does not include the “suffer or permit” definition set forth in the

wage orders and analyzed in Dynamex.

13



Although the DWBR’s definition of employer differs from that of the wage orders

in some respects, it includes one of the wage orders’ alternative definitions verbatim: a

person who “exercises control over the wages, hours, or working conditions” of a worker.



12 While the DWBR takes care to define “domestic work employer,” its overtime

provision does not use the term. In Martinez, the Supreme Court held that section 1194,

which gives “an employee a cause of action for unpaid minimum wages without

specifying who is liable,” only renders employers liable: “That only an employer can be

liable . . . seems logically inevitable as no generally applicable rule of law imposes on

anyone other than an employer a duty to pay wages.” (Martinez, supra, 49 Cal.4th at

p. 49.) We similarly conclude that only a domestic work employer can be liable for

unpaid overtime wages required by the DWBR. No party suggests otherwise.

13 An earlier version of the bill defined the term “[h]ours worked” to include “all time the

domestic work employee is suffered or permitted to work . . . .” (Assem. Bill No. 241

(2013–2014 Reg. Sess.) as amended Mar. 19, 2013, § 2.)

13

While Dynamex expressly declined to consider this standard (Dynamex, supra, 4 Cal.5th

at p. 943), Martinez observed the language “has the obvious utility of reaching situations

in which multiple entities control different aspects of the employment relationship, as

when one entity, which hires and pays workers, places them with other entities that

supervise the work. Consistently with this observation, the IWC has explained its

decision to include the language in one modern wage order as ‘specifically intended to

include both temporary employment agencies and employers who contract with such

agencies to obtain employees within the definition of “employer.” ’ ” (Martinez, supra,

49 Cal.4th at p. 59.)

“It is a settled principle of statutory construction that the Legislature ‘ “is deemed

to be aware of statutes and judicial decisions already in existence, and to have enacted or

amended a statute in light thereof. [Citation.]” [Citation.]’ [Citation.] Courts may

assume, under such circumstances, that the Legislature intended to maintain a consistent

body of rules and to adopt the meaning of statutory terms already construed.” (People v.

Scott (2014) 58 Cal.4th 1415, 1424.) We see no reason why a different principle would

apply to judicial construction of wage orders. (See Dynamex, supra, 4 Cal.5th at p. 914,

fn. 3 [“In California, wage orders are constitutionally-authorized, quasi-legislative

regulations that have the force of law.”].) Accordingly, we presume the Legislature, in

using the term “control of the wages, hours, or working conditions” in enacting the

DWBR in 2013, intended to incorporate the meaning of that term as set forth in the

Supreme Court’s 2010 Martinez decision.14





14 In Dynamex, the Supreme Court declined to determine whether the control over wages,

hours, or working conditions definition applies “only in circumstances in which the

question at issue is whether, when workers are ‘admitted employees’ of one business (the

primary employer), a business entity that has a relationship to the primary employer

should also be considered an employer of the workers such that it is jointly responsible

for the obligations imposed by the wage order.” (Dynamex, supra, 4 Cal.5th at p. 943.)

We follow the “number of post-Martinez Court of Appeal decisions recognizing that the

definitions of ‘employ’ and ‘employer’ discussed in Martinez now govern the resolution

of claims arising out of California wage orders, including whether a worker is an

employee or independent contractor.” (Dynamex, at p. 947.)

14

The Legislature’s use of this definition indicates it wanted to ensure that all joint

employers of domestic workers are liable, including “ ‘temporary employment

agencies’ ” (Martinez, supra, 49 Cal.4th at p. 59). Other indicia of this intent are also

present. Notably, in providing certain employment agencies were not domestic work

employers for purposes of the DWBR, the Legislature provided that only those

employment agencies meeting “all of the factors” in a lengthy and detailed list of

requirements are not employers. (§ 1451, subd. (c)(2)(B), italics added; see part III,

post.) The narrowness and specificity of this exception indicates the Legislature intended

those employment agencies that do not meet all of the requirements may well be

considered employers for purposes of the DWBR. As a Court of Appeal considering a

statute providing that the same requirements render a domestic work employment agency

not an employer for purposes of workers’ compensation law reasoned, “Domestic

workers that would potentially fall within the confines of [the statutory exception] are

free to assert that they are employees of an employment agency for workers’

compensation purposes because it has not complied with the requirements of that section

and therefore is considered an employer.” (An Independent Home Support Service, Inc.

v. Superior Court (2006) 145 Cal.App.4th 1418, 1431 (An Independent Home).) In

addition, legislative analyses noted proponents’ arguments that “[e]ven domestic workers

employed by agencies labor in individual homes and deserve equal rights and labor

protections.” (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of

Assem. Bill No. 241 (2013–2014 Reg. Sess.) as amended Sept. 3, 2013, p. 9.)

In addition to the control over wages, hours, or working conditions definition, the

DWBR also defines a domestic work employer as one who “employs” a domestic work

employee. (§ 1451, subd. (c)(1) [domestic work employer “employs or exercises control

over the wages, hours, or working conditions of a domestic work employee” (italics

added)].) Martinez held “ ‘to employ’ ”—absent an express definition, such as the one

set forth in the wage orders—means “to create a common law employment relationship.”

(Martinez, supra, 49 Cal.4th at p. 64.) The DWBR thus also incorporates the common

law definition of employment.

15

We turn now to the purpose of the statute. In Dynamex, the Supreme Court

discussed the general worker-protective purpose behind wage and hour legislation, such

as the DWBR. “Wage and hour statutes and wage orders were adopted in recognition of

the fact that individual workers generally possess less bargaining power than a hiring

business and that workers’ fundamental need to earn income for their families’ survival

may lead them to accept work for substandard wages or working conditions. The basic

objective of wage and hour legislation and wage orders is to ensure that such workers are

provided at least the minimal wages and working conditions that are necessary to enable

them to obtain a subsistence standard of living and to protect the workers’ health and

welfare.” (Dynamex, supra, 4 Cal.5th at p. 952.) Dynamex noted such statutes are

“primarily for the benefit of the workers themselves,” but also benefitted “law-abiding

businesses that comply with the obligations imposed by the wage orders, ensuring that

such responsible companies are not hurt by unfair competition from competitor

businesses that utilize substandard employment practices,” as well as “the public at large,

because if the wage orders’ obligations are not fulfilled the public will often be left to

assume responsibility for the ill effects to workers and their families resulting from

substandard wages or unhealthy and unsafe working conditions.” (Id. at pp. 952–953.)

These purposes are echoed in the legislative history of the DWBR. Legislative

analyses acknowledged that “domestic workers are largely excluded from some of the

more basic protections afforded to other workers under state and federal law, including

the rights to overtime wages, meal and rest period rights and safe and healthy working

conditions.” (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of

Assem. Bill No. 241 (2013–2014 Reg. Sess.) as amended Sept. 6, 2013, p. 2; see also

Assem. Floor Analysis, Conc. in Sen. Amends. to Assem. Bill No. 241 (2013–2014 Reg

Sess.) as amended Sept. 6, 2013, p. 2 (hereafter, Assem. Floor Analysis).) A committee

report quoted studies stating that “ ‘household workers frequently find themselves

working in substandard and often exploitative conditions, earning poverty wages too low

to support their own families, and lacking access to basic health care.’ ” (Assem. Labor

& Employment Com., Analysis of Assem. Bill. No. 241 (2013–2014 Reg. Sess.) as

16

amended Mar. 19, 2013, p. D; see also Sen. Rules Com., Off. of Sen. Floor Analyses, 3d

reading analysis of Assem. Bill No. 241 (2013–2014 Reg. Sess.) as amended Sept. 3,

2013, p. 9 [“The author’s office notes that domestic workers are among the most isolated

and vulnerable workforce in the state.”].) The bill’s sponsor explained: “ ‘The campaign

to adopt a California Domestic Worker Bill of Rights attempts to address one core

principle: domestic workers deserve equal treatment under the law. Unfortunately,

California suffers from a unique and confounding contradiction: Domestic workers who

care for property such as landscaping or housekeeping are generally entitled to overtime.

Those domestic workers who care for children, the infirm, the elderly, and those with

disabilities do not. The California Domestic Worker Bill of Rights attempts to correct

this injustice.’ ” (Assem. Floor Analysis, p. 2.)15



Dynamex noted the “general principle that wage orders are the type of remedial

legislation that must be liberally construed in a manner that serves its remedial purposes,”

and further found the worker-protective purposes of the wage orders “support a very

broad definition of the workers who fall within the reach of the wage orders.” (Dynamex,

supra, 4 Cal.5th at pp. 952–953.) Because similar objectives underlie the DWBR, we

conclude the DWBR’s provisions governing which domestic workers are covered by its

overtime requirement must be liberally construed. We bear in mind the Supreme Court’s

recent observation: “Although in some circumstances classification as an independent

contractor may be advantageous to workers as well as to businesses, the risk that workers

who should be treated as employees may be improperly misclassified as independent

contractors is significant in light of the potentially substantial economic incentives that a

business may have in mischaracterizing some workers as independent contractors. Such

incentives include the unfair competitive advantage the business may obtain over



15 Earlier versions of the bill included additional protections for domestic workers, such

as meal and rest breaks and paid vacation days. (See Assem. Bill No. 241 (2013–2014

Reg. Sess.) as amended Mar. 19, 2013.) These additional protections were removed in

later amendments, leaving the overtime requirement as the only substantive protection in

the final bill. (See Assem. Floor Analysis, p. 1.)

17

competitors that properly classify similar workers as employees and that thereby assume

the fiscal and other responsibilities and burdens that an employer owes to its employees.”

(Dynamex, at p. 913.)

Finally, the DWBR does not identify which party bears the burden of proof in

determining whether the worker is an employee or an independent contractor. The

workers’ compensation law provides “that ‘[a hiring business] seeking to avoid liability

has the burden of proving that persons whose services [the business] has retained are

independent contractors rather than employees.’ [Citation.] Moreover, the rule that a

hiring entity has the burden of establishing that a worker is an independent contractor

rather than an employee has long been applied in California decisions outside the

workers’ compensation context.” (Dynamex, supra, 4 Cal.5th at p. 958, fn. 24; see also

Linton, supra, 15 Cal.App.5th at p. 1221 [“the rebuttable presumption of employment in

[the workers’ compensation laws] applies to actions brought under Labor Code

provisions falling outside workers’ compensation”].) In light of the liberal construction

we afford the DWBR, we conclude the burden should fall with the hiring entity to prove

that a domestic worker is an independent contractor not entitled to the overtime

protection of the DWBR.

In sum, the DWBR contains two alternative definitions of employment for

purposes of its provisions: (1) when the hiring entity exercises control over the wages,

hours, or working conditions of a domestic worker; or (2) when a common law

employment relationship has been formed. Both definitions must be construed broadly in

light of the purposes of the DWBR, and the hiring entity bears the burden of establishing

that a domestic worker is an independent contractor rather than an employee.

C. Application to This Case

We now apply these tests to the case at hand, construing, as we must, “the

evidence in a light favorable to the losing party . . . , liberally construing her evidentiary

submission while strictly scrutinizing the moving party’s own showing and resolving any

evidentiary doubts or ambiguities in the losing party’s favor.” (Serri, supra, 226

Cal.App.4th at p. 859.)

18

1. Control Over Wages, Hours, or Working Conditions16

“ ‘[C]ontrol over wages’ means that a person or entity has the power or authority

to negotiate and set an employee’s rate of pay . . . .” (Futrell v. Payday California, Inc.

(2010) 190 Cal.App.4th 1419, 1432 (Futrell).) Thus, in Martinez, the Supreme Court

rejected the argument that an entity contracting with the plaintiffs’ employer exercised

control over the plaintiffs’ wages (and was thus a joint employer), in part because the

plaintiffs’ employer “alone . . . determined their rate and manner of pay (hourly or piece

rate) . . . .” (Martinez, supra, 49 Cal.4th at p. 72.) In Futrell, the Court of Appeal found

a payroll processing company, simply by “handling the ministerial tasks of calculating

pay and tax withholding, and by also issuing paychecks, drawn on its own bank account,”

did not exercise control over a worker’s wages. (Futrell, at p. 1432.)

The Client Contract17 attaches a rate sheet listing the “total combined negotiated

caregiver and agency fees based on standard services for one client.”18

Horvath testified



16 Tender Heart contends that, at the hearing below, Plaintiff only argued Tender Heart

exercised control by retaining the ability to refuse further referrals, and that Plaintiff has

therefore waived any other “theories of ‘control.’ ” In Plaintiff’s opposition brief below,

she contended Tender Heart controlled her wages and hours; she also argued she was an

employee under Borello’s multi-factor test. Plaintiff’s arguments on appeal are

preserved.

17 Tender Heart notes that the Client Contract is “subject to preserved evidentiary

objections” and provides a record citation to the objection it filed in the trial court. The

trial court did not rule on the objection and it is thus presumptively overruled and “can

still be raised on appeal,” however, “the burden [is] on the objector to renew the

objections in the appellate court.” (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 534.)

Tender Heart’s record citation to its objection below, without advancing any argument on

the evidentiary issue in its appellate brief, is not sufficient to raise the issue on appeal.

(Serri, supra, 226 Cal.App.4th at p. 854 [“It is inappropriate for an appellate brief to

incorporate by reference arguments contained in a document filed in the trial court.

[Citation.] Such practice does not comply with the requirement that an appellate brief

‘support each point by argument and, if possible, by citation of authority.’ ”].) We note

that Horvath testified the Client Contract in evidence was the standard contract Tender

Heart had been using for at least several years.

19

the Client Contract rate sheet was a starting point but the ultimate rate charged to a given

client “does fluctuate, depending upon the needs and depending upon how complicated

those needs are, and the clients often . . . . want to negotiate a lower rate.” The Caregiver

Contract similarly attaches Tender Heart’s “fee schedule” listing caregiver pay rates.19



As with the client rate sheet, the caregiver pay rates may vary: the caregiver pay rate

sheet includes the express disclaimer that “rates are subject to variation due to client need

and financial limitations.”

Caregivers are paid a portion of the amount Tender Heart bills to clients. The

caregiver’s portion does not appear to be a set percentage of the client rate, or any other

fixed formula in connection to the client’s rate. For example, the standard rates provide

that a client pay $19.75 per hour for a shift of four or more hours. However, the standard

caregiver rates provide that a caregiver will receive $13 per hour for a shift of four to

seven hours, $12 per hour for a shift of eight to ten hours, and $11 per hour for a shift of

ten or more hours. There is no evidence in the record as to how the caregiver’s pay rate

is set when the client rate is higher or lower than the standard rate. Plaintiff testified in

her deposition that when Tender Heart told her about a caregiving opportunity, “I would

get an e-mail and there would be a rate that I would be getting paid for that job.”

The Caregiver Contract provides the “[c]aregiver is free to negotiate with the

client the amount proposed to be paid for services.” However, immediately following

this sentence, the Caregiver Contract states: “Fees for temporary employment shall be

paid in accordance with the fee schedule unless” the caregiver has agreed to have certain

initial costs (for a background check and liability insurance) paid through payroll

deductions. (Italics added.) The Client Contract provides: “In the event the required



18 The client rate sheet lists the hourly rates for two hours as $27 per hour, three hours as

$24 per hour, and four or more hours as $19.75 per hour. The rate sheet also provides

flat rates for night shifts and 24-hour shifts.

19 The caregiver pay rate sheet lists the hourly pay rate for two to three hours is $15 per

hour, for four to seven hours is $13 per hour, for eight to ten hours is $12 per hour, and

for more than ten hours is $11 per hour. The caregiver pay rate sheet also includes flat

rates for night shifts and 24-hour shifts.

20

services are more involved than initially assessed or represented, or service is to be

provided to more than one individual, the caregiver reserves the right to adjust the rates

accordingly. An additional client on the premises normally is assessed a surcharge of 1.5

times the prevailing base rate.”

Horvath testified that caregivers may “want to negotiate a higher rate” and “we

negotiate for the caregivers . . . .” In her deposition, Plaintiff testified she sometimes

asked Tender Heart for a higher pay rate. She did not feel free to talk to clients directly

about her pay rate, although she had not specifically been directed not to do so. Plaintiff

testified about rate negotiations with a particular client, as follows:

“Q. And during the course of providing caregiver services for that person, you wanted a

change in your rate?

“A. Yes.

“Q. And do you recall talking to the daughter about that?

“A. No. I talked to the agency first.

“Q. And then at some point, you talked to the daughter directly?

“A. She came to me and I let her know, you know, I’m caring for both of your parents

now, so, you know, doing their total care, so it makes sense.

“Q. You had no problem talking to them directly about the rate?

“A. No, I didn’t talk to her about any rate. I just let her know that I believe I deserved a

raise, because I’m taking care of both of her parents, and this was after I talked to the

agency first.

“Q. And did the daughter agree to that?

“[Plaintiff’s counsel]: Agree to what?

“[Tender Heart’s counsel]: The change in rate.

“[Plaintiff]: She spoke to the agency and they discussed, to where it should go, and then

the agency reached out to me, to ask me where [I] think it should go. And I told them

initially, I don’t know, I wasn’t -- I don’t know.

“[Tender Heart’s counsel]: At some point did you discuss what you wanted as a rate with

someone?

21

“A. Yes.

“Q. And was that honored?

“A. They would get back to me on what they could get from the client.

“Q. Okay. And then, after that, was your request honored?

“A. It met in the middle somehow.

“Q. Was that agreeable with you?

“A. It was what I was able to get paid.”

Construing the above evidence in the light most favorable to Plaintiff, a factfinder

could find as follows. Tender Heart negotiates with the client about the initial rates the

client will pay, and then unilaterally determines what portion of that rate the caregiver

will receive. Caregivers can seek higher pay for a given client only, as set forth in the

Client Contract, when “the required services are more involved than initially assessed or

represented.” Moreover, caregivers cannot negotiate their pay directly with the client,

but must request that Tender Heart do so. If Tender Heart does renegotiate the rate with

the client, it then determines, again unilaterally, what portion of the increased rate will go

to the caregiver. We conclude Plaintiff demonstrated a dispute of fact over whether

Tender Heart exercised “the power or authority to negotiate and set [Plaintiff’s] rate of

pay,” and thereby exercised control over her wages. (Futrell, supra, 190 Cal.App.4th at

p. 1432.)

Plaintiff also contends Tender Heart exercised control over her hours, citing

evidence that Tender Heart would inform Plaintiff of the hours of an offered shift. The

evidence is undisputed that Plaintiff could refuse any offered shift. We therefore

conclude the undisputed facts demonstrate Tender Heart did not control Plaintiff’s hours.

Plaintiff does not contend Tender Heart exercised control over her working conditions.

However, as Martinez observed, this definition of employment is “phrased . . . in the

alternative (i.e., ‘wages, hours, or working conditions),” and thus control over any one of

the three creates an employment relationship. (Martinez, supra, 49 Cal.4th at p. 59.)

Plaintiff has thus established a dispute of fact as to whether Tender Heart was her

employer because it exercised control over her wages.

22

2. Common Law

We also consider whether there is a fact dispute as to whether Plaintiff was an

employee under the common law, construing the factors identified in Borello in light of

the worker-protective purposes of the DWBR. These factors include those employed in

prior California cases: “(a) whether the one performing services is engaged in a distinct

occupation or business; (b) the kind of occupation, with reference to whether, in the

locality, the work is usually done under the direction of the principal or by a specialist

without supervision; (c) the skill required in the particular occupation; (d) whether the

principal or the worker supplies the instrumentalities, tools, and the place of work for the

person doing the work; (e) the length of time for which the services are to be performed;

(f) the method of payment, whether by the time or by the job; (g) whether or not the work

is a part of the regular business of the principal; . . . (h) whether or not the parties believe

they are creating the relationship of employer-employee”; and (i) “ ‘the right to discharge

at will, without cause.’ ” (Borello, supra, 48 Cal.3d at pp. 350–351.) They also include a

six-factor test developed by other jurisdictions: “(1) the alleged employee’s opportunity

for profit or loss depending on his managerial skill; (2) the alleged employee’s

investment in equipment or materials required for his task, or his employment of helpers;

(3) whether the service rendered requires a special skill; (4) the degree of permanence of

the working relationship; . . . (5) whether the service rendered is an integral part of the

alleged employer’s business”; and (6) “the ‘right to control the work.’ ” (Id. at pp. 354–

355.)

The facts of Borello itself are instructive. The workers in Borello were

“agricultural laborers engaged to harvest cucumbers under a written ‘sharefarmer’

agreement” with Borello, a grower of multiple crops, including cucumbers. (Borello,

supra, 48 Cal.3d at pp. 345, 347.) The workers “arrive around ‘2–3 weeks’ before the

harvest begins,” “contract for the amount of land they wish to harvest,” and “are ‘totally

responsible’ for the care of the plants in their assigned plots during the harvest period.”

(Id. at p. 347.) They set their own hours and Borello does not supervise or direct them.

(Ibid.) They are paid based on a share of the gross proceeds. (Id. at p. 346.) After

23

considering multiple factors, the Supreme Court found the workers were employees, not

independent contractors, for purposes of the workers’ compensation laws. (Id. at p. 360.)

The Supreme Court first considered that “Borello, whose business is the

production and sale of agricultural crops, exercises ‘pervasive control over the operation

as a whole.’ [Citation.] Borello owns and cultivates the land for its own account.

Without any participation by the sharefarmers, Borello decides to grow cucumbers,

obtains a sale price formula from the only available buyer, plants the crop, and cultivates

it throughout most of its growing cycle. The harvest takes place on Borello’s premises, at

a time determined by the crop’s maturity. During the harvest itself, Borello supplies the

sorting bins and boxes, removes the harvest from the field, transports it to market, sells it,

maintains documentation on the workers’ proceeds, and hands out their checks. Thus,

‘[a]ll meaningful aspects of this business relationship: price, crop cultivation, fertilization

and insect prevention, payment, [and] right to deal with buyers . . . are controlled by

[Borello].’ ” (Borello, supra, 48 Cal.3d at p. 356, fn. omitted.) The Supreme Court

additionally found the workers “form a regular and integrated portion of Borello’s

business operation. Their work, though seasonal by nature, is ‘permanent’ in the

agricultural process. . . . This permanent integration of the workers into the heart of

Borello’s business is a strong indicator that Borello functions as an employer under the

[Workers’ Compensation] Act.” (Id. at p. 357.)

While a caregiving business has fewer operational details to control than that of a

cucumber grower, there is evidence that Tender Heart selects clients, performs the initial

assessment of the clients’ needs, matches caregivers according to the clients’ needs,

negotiates the amount charged to the client, and determines what portion of that amount

will be paid to the caregiver. These facts, if established, constitute substantial control

over the details of the caregiving business. Tender Heart protests that it is not in the

business of caregiving, but is simply a referral agency. There is evidence that its business

is to enter into contracts with clients for the provision of caregivers matched to that

client’s needs, as determined by Tender Heart’s assessment. Absent the caregivers,

Tender Heart could not fulfill its contracts with clients and therefore could not operate its

24

business. As in Borello, there is evidence the caregivers “form a regular and integrated

portion of [Tender Heart’s] business operation.” (Borello, supra, 48 Cal.3d at p. 357, see

also Linton, supra, 15 Cal.App.5th at p. 1223 [“The work [the plaintiff cab driver]

performed is part and parcel of what defendant does, which is operate cabs in San

Francisco. A strong argument can be made that without plaintiff and others like him, the

service defendant provides could not be accomplished.”].)

The grower in Borello did not supervise the work of the harvesters, but the

Supreme Court did not find this fact significant because “the cucumber harvest involves

simple manual labor which can be performed in only one correct way. Harvest and plantcare

methods can be learned quickly. While the work requires stamina and patience, it

involves no peculiar skill beyond that expected of any employee. [Citations.] It is the

simplicity of the work, not the harvesters’ superior expertise, which makes detailed

supervision and discipline unnecessary. Diligence and quality control are achieved by

the payment system, essentially a variation of the piecework formula familiar to

agricultural employment.” (Borello, supra, 48 Cal.3d at pp. 356–357.) It is undisputed

that Tender Heart did not supervise Plaintiff in the performance of her caregiving duties.

Horvath’s declaration avers that caregiving “require[s] skills and experience which go

well beyond those possessed by the average person.” However, there is also evidence

that the duties of a caregiver—while demanding and necessitating patience, empathy, and

good humor—do not require special skills or training. Most notably, the list of

caregiving duties set forth in Tender Heart’s contracts are basic activities of daily living:

companionship, personal care and hygiene, medication reminders, meal preparation,

errands, answering the phone or door, attending events.20

Construing the evidence in the

light most favorable to Plaintiff, a factfinder could conclude a caregiver’s duties, like that



20 Although Tender Heart asserts that additional services were required depending on the

client’s need, it cites no evidence identifying such additional services or establishing that

they required special skill or training. Tender Heart also points to evidence that Plaintiff

was a certified nursing assistant and was enrolled in college courses during her time

performing caregiver work with Tender Heart. There is no evidence that a caregiver had

to be a certified nursing assistant or take college courses to perform caregiving duties.

25

of a cucumber harvester, are simply not the type requiring detailed supervision. (See

Linton, supra, 15 Cal.App.5th at p. 1222 [“That a degree of freedom is permitted to a

worker, or is inherent in the nature of the work involved, does not automatically lead to

the conclusion that a worker is an independent contractor.”].)

The parties dispute whether Tender Heart retained the right to terminate caregivers

at will. (See Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522, 531

[“Perhaps the strongest evidence of the right to control is whether the hirer can discharge

the worker without cause, because ‘[t]he power of the principal to terminate the services

of the agent gives him the means of controlling the agent’s activities.’ ”].) The Caregiver

Contract provides: “The relationship between a CAREGIVER and client may only be

terminated by either of those parties and not by [Tender Heart]. However, [Tender Heart]

may decline to make additional referrals to a particular CAREGIVER . . . .” The impact

of the restriction on Tender Heart’s ability to terminate a relationship between a caregiver

and client depends on an ambiguous term, “relationship.” Does the relationship between

a caregiver and a client form after one shift, or does it require repeated shifts? Does the

relationship, once formed, last for the duration of Tender Heart’s contract with that client,

or for some shorter period? But for this ambiguous restriction, Tender Heart’s ability to

decline to make additional referrals, apparently without cause, seems akin to the ability to

terminate at will.21

Tender Heart argues it never unilaterally ceased making referrals to

Plaintiff, but “what matters is whether a hirer has the ‘legal right to control the activities

of the alleged agent’ . . . . That a hirer chooses not to wield power does not prove it lacks

power.” (Ayala, at p. 535.)



21 Tender Heart notes that a statute declaring certain domestic work employment agencies

are not employers provides “an employment agency may decline to make additional

referrals to a particular domestic worker . . . .” (Civ. Code, § 1812.5095, subd. (b)(9); see

post, part III.) However, the statute sets forth numerous detailed requirements for an

employment agency to fall within its provisions. We decline to construe the Legislature’s

inclusion of this provision to mean that an agency’s right to decline to make additional

referrals is never indicative of an employment relationship.

26

Borello also found the harvesters “engage in no distinct trade or calling. They do

not hold themselves out in business. They perform typical farm labor for hire wherever

jobs are available. They invest nothing but personal service and hand tools. They incur

no opportunity for ‘profit’ or ‘loss;’ like employees hired on a piecework basis, they are

simply paid by the size and grade of cucumbers they pick. They rely solely on work in

the fields for their subsistence and livelihood.” (Borello, supra, 48 Cal.3d at pp. 357–

358, fns. omitted.) There is no evidence that Plaintiff held herself out in business. The

list of caregiving duties does not suggest a need for specialized tools or supplies,

although Plaintiff testified she purchased her own scrubs. She testified in her deposition

that she signed up with multiple caregiving agencies at the same time she received

referrals from Tender Heart. Horvath averred it was “not uncommon for caregivers to

work with multiple agencies, at the same time, in order to secure sufficient work to fill

their available hours . . . .” Like the cucumber harvesters, there is evidence that Plaintiff

did not have an opportunity for profit or loss, but simply performed caregiving for hire

wherever she could find work.

The Supreme Court discounted the harvesters’ contractual agreement that they are

not employees: “where compelling indicia of employment are otherwise present, we may

not lightly assume an individual waiver of the protections derived from that status. [¶]

Moreover, there is no indication that Borello offers its cucumber harvesters any real

choice of terms.” (Borello, supra, 48 Cal.3d at pp. 358–359.) Similarly, although the

Caregiver Contract signed by Plaintiff stated she was an independent contractor, not an

employee, there is evidence of other indicia of employment and Plaintiff averred in her

declaration that the Caregiver Contract was presented to her “on a take it or leave it

basis.” 22

“A party’s use of a label to describe a relationship with a worker . . . will be

ignored where the evidence of the parties’ actual conduct establishes that a different

relationship exists.” (Futrell, supra, 190 Cal.App.4th at p. 1437; see also Linton, supra,



22 Although Tender Heart argues the trial court found Plaintiff’s declaration “largely

inadmissible,” the court found this fact admissible.

27

15 Cal.App.5th at p. 1222 [“the mere fact the employment agreement characterizes the

relationship of the parties in a particular way is not determinative of the actual legal

status of the parties”].)

The Supreme Court in Borello concluded the harvesters “have no practical

opportunity to insure themselves or their families against loss of income caused by

nontortious work injuries. If Borello is not their employer, they themselves, and society

at large, thus assume the entire financial burden when such injuries occur. Without

doubt, they are a class of workers to whom the protection of the [Workers’

Compensation] Act is intended to extend.” (Borello, supra, 48 Cal.3d at pp. 357–358,

fns. omitted.) Similarly, Plaintiff entered into a contract written by Tender Heart to fulfill

caregiving contracts between Tender Heart and its clients, and there is evidence Plaintiff

was paid wages determined by Tender Heart. Moreover, at least under the standard terms

of the rate sheet incorporated as part of the Caregiver Contract, her hourly wage

decreased for shifts that, under the DWBR, would entitle her to overtime wages: she

received $13 per hour for a shift of four to seven hours, $12 per hour for a shift of eight

to ten hours, and $11 per hour for a shift of more than ten hours. There is evidence that

Plaintiff is the type of worker the DWBR was enacted to protect.

In sum, Plaintiff established a dispute of fact as to whether she was an independent

contractor or employee under both the “control over wages” test and the common law

test. The trial court erred in granting summary adjudication to Tender Heart on this

ground.23

III. Employment Agency Exception

Tender Heart argues we can affirm the trial court on an alternative ground, to wit,

that the undisputed facts establish it is a non-employer employment agency.

As noted above, the DWBR includes certain exceptions to its definition of

domestic work employer. One of these exceptions is “[a]n employment agency that



23 This conclusion renders it unnecessary for us to decide whether, as Plaintiff argues, the

trial court also erred in denying her motion for a new trial on the employee/independent

contractor issue.

28

complies with Section 1812.5095 of the Civil Code and that operates solely to procure,

offer, refer, provide, or attempt to provide work to domestic workers if the relationship

between the employment agency and the domestic workers for whom the agency

procures, offers, refers, provides, or attempts to provide domestic work is characterized

by all of the factors listed in subdivision (b) of Section 1812.5095 of the Civil Code and

Section 687.2 of the Unemployment Insurance Code.” (§ 1451, subd. (c)(2)(B).) Civil

Code section 1812.5095, in turn, provides that “[a]n employment agency is not the

employer of a domestic worker for whom it procures, offers, refers, provides, or attempts

to provide work, if all of the following factors characterize the nature of the relationship,”

including that “a signed contract or agreement between the employment agency and the

domestic worker” specifies “[h]ow the employment agency’s referral fee shall be paid.”

(Civ. Code, § 1812.5095, subd. (b).)24





24 The entire list of required factors is: “(1) There is a signed contract or agreement

between the employment agency and the domestic worker that contains, at a minimum,

provisions that specify all of the following: [¶] (A) That the employment agency shall

assist the domestic worker in securing work. [¶] (B) How the employment agency's

referral fee shall be paid. [¶] (C) That the domestic worker is free to sign an agreement

with other employment agencies and to perform domestic work for persons not referred

by the employment agency. [¶] (2) The domestic worker informs the employment agency

of any restrictions on hours, location, conditions, or type of work he or she will accept

and the domestic worker is free to select or reject any work opportunity procured,

offered, referred, or provided by the employment agency. [¶] (3) The domestic worker is

free to renegotiate with the person hiring him or her the amount proposed to be paid for

the work. [¶] (4) The domestic worker does not receive any training from the

employment agency with respect to the performance of domestic work. However, an

employment agency may provide a voluntary orientation session in which the

relationship between the employment agency and the domestic worker, including the

employment agency’s administrative and operating procedures, and the provisions of the

contract or agreement between the employment agency and the domestic worker are

explained. [¶] (5) The domestic worker performs domestic work without any direction,

control, or supervision exercised by the employment agency with respect to the manner

and means of performing the domestic work. An employment agency shall not be

deemed to be exercising direction, control, or supervision when it takes any of the

following actions: [¶] (A) Informs the domestic worker about the services to be provided

and the conditions of work specified by the person seeking to hire a domestic worker. [¶]

(B) Contacts the person who has hired the domestic worker to determine whether that

29

The trial court found Tender Heart’s contract with Plaintiff did not specify “[h]ow

the employment agency’s referral fee shall be paid” as required by Civil Code section

1812.5095, subdivision (b)(1)(B). Tender Heart points to paragraph 4 of the Caregiver

Contract, which provides: “PAYMENT OF FEES. Caregiver shall remit to [Tender

Heart] each Monday a timesheet showing hours worked and signed by Client. [Tender

Heart’s] billing service shall bill Client for services rendered by CAREGIVER. When

[Tender Heart’s] billing service receives payment from the Client the payment will be

placed into a trust account and the CAREGIVER will be paid the amount due. [Tender

Heart] is not obligated to pay the CAREGIVER if the person for whom the services were

performed fails or refuses to pay for the services. If engagement is terminated, [Tender

Heart’s] fee may not exceed CAREGIVER’s gross earnings in that engagement.” Tender



person is satisfied with the agency’s referral service. [¶] (C) Informs the domestic worker

of the time during which new referrals are available. [¶] (D) Requests the domestic

worker to inform the employment agency if the domestic worker is unable to perform the

work accepted. [¶] (6) The employment agency does not provide tools, supplies, or

equipment necessary to perform the domestic work. [¶] (7) The domestic worker is not

obligated to pay the employment agency’s referral fee, and the employment agency is not

obligated to pay the domestic worker if the person for whom the services were performed

fails or refuses to pay for the domestic work. [¶] (8) Payments for domestic services are

made directly to either the domestic worker or to the employment agency. Payments

made directly to the employment agency shall be deposited into a trust account until

payment can be made to the domestic worker. [¶] (9) The relationship between a

domestic worker and the person for whom the domestic worker performs services may

only be terminated by either of those parties and not by the employment agency that

referred the domestic worker. However, an employment agency may decline to make

additional referrals to a particular domestic worker, and the domestic worker may decline

to accept a particular referral.” (Civ. Code, § 1812.5095, subd. (b); see also Unempl. Ins.

Code, § 687.2.) The legislative history of Civil Code section 1812.5095 indicates it “was

intended to be ‘declaratory of existing law decided in Avchen v. Kid[d]oo (1988) 200

Cal.App.3d 532.’ ” (An Independent Home, supra, 145 Cal.App.4th at p. 1434.) In

Avchen v. Kiddoo, the Court of Appeal found a nurses’ registry was not an employer for

unemployment purposes where the registry signed up nurses, informed them of work

opportunities, and put them in touch with the hospital or patient seeking a nurse, at which

point the nurse and the hospital or patient would establish the rate of pay, and the registry

would collect a commission from the nurse for successful placements. (Avchen v.

Kiddoo, at p. 534.)

30

Heart also points to an additional contract between Plaintiff and an entity called “JAH

Tender Heart,” which provides in relevant part that Plaintiff “authorize[s] JAH Tender

Heart to invoice, collect, deposit and distribute my fees for services rendered as a private

caregiver. [¶] I will supply JAH Tender Heart my client information and the appropriate

fees due on a weekly basis, JAH agrees to invoice these clients on a weekly basis, accept

payments from the client as a fiduciary and distribute my proceeds every other Monday.”

Tender Heart argues these provisions satisfy the employment agency exception by

specifying that Tender Heart’s fee is paid by “leaving [Tender Heart] with the difference

after distributing the caregiver’s agreed fixed share.” We disagree. As an initial matter,

there is no evidence that “JAH Tender Heart” is the same entity as Tender Heart, and

therefore no basis to conclude that the terms of the contract between Plaintiff and JAH

Tender Heart can be considered to determine whether the “contract or agreement between

the employment agency and the domestic worker” contains the necessary provisions.

Even so assuming, the identified provisions leave it entirely unclear how Tender Heart’s

fee is paid.

25

The only provision relevant to Tender Heart’s fee addresses the maximum

fee payable to Tender Heart if a caregiver’s engagement is terminated. We agree with

Tender Heart that the statute does not require the amount or rate of the fee be specified in

the contract. Nonetheless, the requirement that the contract specify “how” the fee is paid

requires some specification, and none is provided in the provisions here.

We also note that for an employment agency to fall within the DWBR’s safe

harbor, the statute additionally requires “[t]he domestic worker is free to renegotiate with

the person hiring him or her the amount proposed to be paid for the work.” (Civ. Code,



25 A review of the standard rate sheets attached to the Client Contract and the Caregiver

Contract indicate that Tender Heart’s fee is a portion of the rate paid by the client.

However, for the employment agency exception to apply, the referral fee specification

must appear in “a signed contract or agreement between the employment agency and the

domestic worker.” (Civ. Code, § 1812.5095, subd. (b), italics added.)

31

§ 1812.5095, subd. (b)(3).) As we have concluded above, Plaintiff established a fact

dispute on this issue.26



Accordingly, we cannot affirm the trial court’s order on the alternative ground that

the undisputed facts establish Tender Heart is a non-employer employment agency

pursuant to section 1451, subdivision (c)(2)(B).

The order granting summary adjudication for Tender Heart on Plaintiff’s first

seven causes of action is reversed, and the matter is remanded for proceedings not

inconsistent with this opinion. Plaintiff shall recover her costs on appeal. In the trial court, Plaintiff argued this additional reason why Tender Heart did not

comply with the employment agency exception.