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AB-1243 Employment: taxi drivers.(2013-2014)

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CALIFORNIA LEGISLATURE— 2013–2014 REGULAR SESSION

Assembly Bill
No. 1243


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   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.