BILL NUMBER: AB 1243	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Hueso

                        FEBRUARY 22, 2013

   An act to add Section 2750.8 to the Labor Code, relating to
employment.



	LEGISLATIVE COUNSEL'S DIGEST


   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 1.  Section 2750.8 is added to the Labor Code, to read:
   2750.8.  (a) Notwithstanding Section 3357, in any matter where the
classification of a driver of a taxicab is to be determined, if a
licensed taxicab driver operates the taxicab in association with a
taxi company that provides vehicles for lease and lessees or taxicab
owners pay the company for services that may include, but are not
limited to, marketing, fleet insurance, dispatch, cashiering, credit
card processing, mechanical, and other administrative services, there
shall be a presumption, rebuttable by clear and convincing evidence
pursuant to subdivision (b), and affecting the burden of proof, that
the driver is an independent contractor rather than an employee of
the taxi company.
   (b) Proof of employee status includes proof by clear and
convincing evidence of the following factors, listed in order of
decreasing significance:
   (1) That the driver has no opportunity for realizing
entrepreneurial profit or loss based on the driver's knowledge, skill
in the work of driving passengers, exercise of operational
discretion, and self-marketing such as developing personal customers.

   (2) That the taxi company directs or controls the manner, means,
and details of transporting a passenger.
   (3) That the parties do not have a written agreement that
describes the driver as an independent contractor.
   (4) That the taxi company imposes a monetary penalty, suspends
dispatch services, or takes other direct punitive action against the
driver for not accepting a trip made available by the company.
   (5) That the company requires the driver to drive particular
hours, shifts, days, or weeks.
   (6) That the driver is not allowed to independently promote his or
her business through direct communications with potential passengers
either through advertising or telephone, Internet, e-mail, text, or
data communications.
   (7) That the taxi company does not utilize a computerized dispatch
system or similar technology that is capable of increasing the
driver's freedom from traditional, employer-like controls.
   (c) Notwithstanding subdivision (b), the following factors may not
be considered as evidence of employer-like control by the taxi
company:
   (1) That the taxi drivers are engaged in the same general business
or occupation as the taxi company, or that the drivers are a regular
and integrated portion of the taxi company's business operation,
where the drivers drive the passengers and the taxi company provides
affiliated services, including, but not limited to, dispatching,
towing, repair, maintenance, marketing, technology, fleet insurance,
and accounting.
   (2) That the taxi company takes measures reasonably calculated to
encourage the driver to provide those services he or she has agreed
to provide when the driver has accepted the offer of a trip or order,
or has entered into a taxi stand line, hotel line, airport holding
lot line, or similar designated line for taxi transportation.
   (3) That the taxi company takes measures reasonably calculated to
ensure driver compliance with requirements or standards imposed by
law, regulation, ordinance, regulatory enforcement, or contract, or
principles of good will and courtesy imposed by the company.
   (4) That the taxi company uses, and allows the drivers access to,
technological advancements, including, but not limited to, mobile
phone taxi request technology or rear-seat credit card processing
technology, thereby increasing the mutual profitability of the
enterprise for both the taxi company and the driver.
   (5) That the driver pays or reimburses the taxi company for the
services, vehicles, or other equipment provided by the company,
including, but not limited to, the services of dispatching, towing,
repair, maintenance, marketing, technology, fleet insurance, and
accounting.
   (6) That the driver accepts dispatch services only from a single
taxi company, whether by choice, or pursuant to a contract or law, if
all the following requirements are met:
   (A) The driver is independently licensed as a taxi driver by a
municipal, county, or regional authority.
   (B) The driver may terminate his affiliation with the taxi
company, without cause, by notice to the taxi company within 30 days
or less before the effective date of the termination.
   (C) After termination of his or her affiliation with the taxi
company, the driver may affiliate his license, vehicle, or both with
a competitor taxi company.