Dynamex Is Dynamite, but Epic Systems Is Its Foil – Chamber of Commerce: The Sleeper in the Trilogy

This Article examines the concept of the independent contractor classification – a characterization at issue in early litigation involving the question of whether particular workers are employees or independent contractors. It describes the early cases arising in transportation, including over-the-road trucking, the taxi-cab industry, and package delivery companies like Federal Express (“FedEx”). The Article takes the position that the concept of flexibility, frequently used by employers to classify or reclassify employees as independent contractors, is a false justification for determining that employees are independent contractors. It also takes the position that engaging in part-time work for numerous employers is consistent with a finding of an employment relationship.

The Article focuses upon a “trilogy of cases,” beginning with the Supreme Court of California’s unanimous, landmark decision in Dynamex Operations West, Inc. v. Superior Court of Los Angeles, which established a presumption in favor of employee status – a holding that has provoked considerable resistance from the business community.