AB 1243, as introduced, Hueso. Employment: taxi drivers.
Under existing law, whether a person is an employee or an independent contractor of another is determined under the common law rules applicable for determining an employer-employee relationship, under which the most important factor is the right of the principal to control the manner and means of accomplishing a desired result.
This bill would, in any matter where the classification of a driver of a taxicab is to be determined, as specified, establish a presumption, rebuttable by clear and convincing evidence, as specified, that the driver of a taxicab is an independent contractor rather than an employee of the taxi company. The bill would specify, in order of decreasing significance, the factors used in rebutting the presumption, and would specify the factors that may not be considered as evidence of employer-like control by a taxi company.
Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.
The people of the State of California do enact as follows:
Section 2750.8 is added to the Labor Code, to
2read:
(a) Notwithstanding Section 3357, in any matter where
2the classification of a driver of a taxicab is to be determined, if a
3licensed taxicab driver operates the taxicab in association with a
4taxi company that provides vehicles for lease and lessees or taxicab
5owners pay the company for services that may include, but are not
6limited to, marketing, fleet insurance, dispatch, cashiering, credit
7card processing, mechanical, and other administrative services,
8there shall be a presumption, rebuttable by clear and convincing
9evidence pursuant to subdivision (b), and affecting the burden of
10proof, that the driver is an independent contractor rather than an
11employee of the taxi company.
12(b) Proof of employee status includes proof by clear and
13convincing
evidence of the following factors, listed in order of
14decreasing significance:
15(1) That the driver has no opportunity for realizing
16entrepreneurial profit or loss based on the driver’s knowledge,
17skill in the work of driving passengers, exercise of operational
18discretion, and self-marketing such as developing personal
19customers.
20(2) That the taxi company directs or controls the manner, means,
21and details of transporting a passenger.
22(3) That the parties do not have a written agreement that
23describes the driver as an independent contractor.
24(4) That the taxi company imposes a monetary penalty, suspends
25dispatch services, or takes other direct punitive action against the
26driver for not accepting a trip made available by the company.
27(5) That the company requires the driver to drive particular
28hours, shifts, days, or weeks.
29(6) That the driver is not allowed to independently promote his
30or her business through direct communications with potential
31passengers either through advertising or telephone, Internet, e-mail,
32text, or data communications.
33(7) That the taxi company does not utilize a computerized
34dispatch system or similar technology that is capable of increasing
35the driver’s freedom from traditional, employer-like controls.
36(c) Notwithstanding subdivision (b), the following factors may
37not be considered as evidence of employer-like control by the taxi
38company:
39(1) That the taxi drivers are engaged in the same
general
40business or occupation as the taxi company, or that the drivers are
P3 1a regular and integrated portion of the taxi company’s business
2operation, where the drivers drive the passengers and the taxi
3company provides affiliated services, including, but not limited
4to, dispatching, towing, repair, maintenance, marketing,
5technology, fleet insurance, and accounting.
6(2) That the taxi company takes measures reasonably calculated
7to encourage the driver to provide those services he or she has
8agreed to provide when the driver has accepted the offer of a trip
9or order, or has entered into a taxi stand line, hotel line, airport
10holding lot line, or similar designated line for taxi transportation.
11(3) That the taxi company takes measures reasonably calculated
12to ensure driver compliance with requirements or standards
13imposed by law, regulation, ordinance, regulatory enforcement,
14or
contract, or principles of good will and courtesy imposed by
15the company.
16(4) That the taxi company uses, and allows the drivers access
17to, technological advancements, including, but not limited to,
18mobile phone taxi request technology or rear-seat credit card
19processing technology, thereby increasing the mutual profitability
20of the enterprise for both the taxi company and the driver.
21(5) That the driver pays or reimburses the taxi company for the
22services, vehicles, or other equipment provided by the company,
23including, but not limited to, the services of dispatching, towing,
24repair, maintenance, marketing, technology, fleet insurance, and
25accounting.
26(6) That the driver accepts dispatch services only from a single
27taxi company, whether by choice, or pursuant to a contract or law,
28if all the following requirements
are met:
29(A) The driver is independently licensed as a taxi driver by a
30municipal, county, or regional authority.
31(B) The driver may terminate his affiliation with the taxi
32company, without cause, by notice to the taxi company within 30
33days or less before the effective date of the termination.
34(C) After termination of his or her affiliation with the taxi
35company, the driver may affiliate his license, vehicle, or both with
36a competitor taxi company.
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