Duffey v. Tender Heart Home Care Agency

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.

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