Mike Kun Quoted in “Is Joint-Employer ABC Test the Next Big Thing?”

Law360 Employment Authority

Michael S. Kun, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Los Angeles office, was quoted in Law360 Employment Authority, in “Is Joint-Employer ABC Test the Next Big Thing?” by Max Kutner. (Read the full version – subscription required.)

Following is an excerpt:

A three-point test for determining independent contractor status could expand to new states and become federal law, and employment attorneys are questioning whether the same inquiry should be used to determine when multiple businesses share liability for labor law violations.

Two California appellate panels have ruled that the ABC test from the state Supreme Court's 2018 holding in Dynamex Operations West Inc. v. Superior Court of Los Angeles does not apply to evaluating whether an employer is jointly liable, and the state's high court has declined to weigh in. But attorneys for workers and employers both believe the issue will keep coming up in the Golden State and elsewhere.

"The fact that we have two California Court of Appeal decisions on the issue doesn't necessarily mean that this issue is laid to rest for time eternal," Michael Kun of employer-side firm Epstein Becker Green told Law360. "There certainly could be a contradictory decision."

Here, Law360 looks at highlights of the debate over applying the ABC test to joint-employer suits. …

The ABCs of the Future

Employment lawyers expect that once a California court departs from the Curry and Henderson rulings, the state's high court will finally weigh in.

"Is it possible that another one of the appellate districts here in California is going to reach an opposite conclusion sometime in the coming months or years? Absolutely," Kun said. "If and when that happens ... I would be shocked if the California Supreme Court did not then address the issue."