California Continues to Go to the Dogs

From JDSupra, Anthony Oncidi and Dylan Tedford discuss an appellate case in California which centers on whether pet care providers are employees or independent contractors. Anthony and Dylan write:

On March 17, Rover—a digital application connecting pet owners with daily pet-care providers—argued to the Ninth Circuit that it should uphold a California federal judge’s finding that a dog-sitter was properly classified as an independent contractor.

While maintaining that it passes the strict three-pronged “ABC test”—which we have reported on herehere, and here—Rover also asserted that it is a “referral agency” under the California Labor Code and is, therefore, subject to the 11-factor Borello test, which is less stringent than the ABC test and focuses on whether the hiring entity has the right to control the worker in both the work completed and in the manner and means in which the work is performed.

Rover asserted that the individual pet-care provider’s control over their rates; cancellations; services provided – including when, where, how, and for whom those services are provided; and that Rover requires no exclusivity from pet-care providers indicate that the providers are independent contractors.  Additionally, Rover argued that facilitating a direct connection between clients and pet-care providers is different from “directly and continuously providing those services.”  Moreover, Rover urged that since the dog walker uses her own tools for her work—in an industry where she works separately from Rover and has only used Rover sporadically—she is primarily engaged in her own independent business endeavor.

The appellant pet-care provider, however, claimed that Rover “exerts pressure” on providers to perform certain tasks while pet sitting, such as sharing photos with owners while providing services.  Further, the pet-care provider contends that Rover’s 20% service fee gives the company effective control over the provider’s rates.

We will continue to monitor this case as well as any others with potentially far-reaching consequences for California hirers – and dogs alike!

Source: California Continues to Go to the Dogs | Proskauer – California Employment Law – JDSupra

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