Good Faith Dispute Over Employment Relationship Allows Walmart to Escape Waiting Time Penalties

In a current opinion in Hill v. Walmart Inc., the Ninth Circuit affirmed abstract judgment in favor of Walmart on Hill’s declare for ready time penalties beneath Labor Code part 203, discovering there was a good-faith dispute about whether or not Hill was correctly categorized as an unbiased contractor of Walmart.

The Info

Hill offered modeling companies to Walmart for a complete of 15 non-consecutive days in 2016 and 2017.  Walmart contracted with Hill’s company and paid the company a flat charge for Hill’s companies.  Throughout the photoshoots, Walmart offered Hill with clothes and advised her how to pose.  Hill paid for her personal journey and deducted her enterprise bills from her taxes.  Hill didn’t obtain a W-2 from Walmart or signal any employment-related paperwork.

In 2019, Hill sued Walmart alleging it had not paid her all wages upon “discharge,” or on the finish of every shoot, and she or he due to this fact claimed Walmart owed her ready time penalties beneath Labor Code part 203.  The district court docket granted abstract judgment in Walmart’s favor, discovering there was a good-faith dispute as to whether or not Hill was an worker of Walmart.

The Enchantment

On enchantment, Hill argued that Walmart couldn’t depend on the good-faith dispute protection as a result of it requires “a good faith dispute that any wages are due” and Walmart didn’t dispute that some wages had been due.  Relatively, Walmart solely disputed when these wages had been due.  The Ninth Circuit rejected this argument and famous “wages” are particularly outlined as “all amounts for labor performed by employees.”  If Hill was in the end discovered to be an unbiased contractor, she wouldn’t be entitled to quick fee of “wages.”

The Ninth Circuit then turned to the deserves of the good-faith dispute protection.  To prevail on the good-faith dispute protection, the protection can’t be marred by unhealthy religion conduct.  The Courtroom concluded there was nothing within the report to recommend “bad faith” on Walmart’s half.

The protection should even be objectively cheap, even when it isn’t in the end profitable.  In figuring out whether or not Walmart’s protection was cheap, the court docket first had to decide which take a look at of employment utilized.  Underneath the widespread regulation Borello take a look at, courts look to a listing of things, of which the precise to management the style and technique of the work is a very powerful.  Underneath the ABC take a look at set forth in Dynamex (which, though determined in 2018, has been held to apply retroactively), an entity should show the person’s work was outdoors the same old course of the hiring entity’s enterprise (amongst different issues).

The Courtroom first famous the ABC take a look at didn’t change Borello in all circumstances.  Relatively, the Courtroom discovered that the ABC take a look at solely applies to circumstances ruled by the Wage Orders.  As a result of Hill didn’t allege Walmart violated any Wage Order, the Courtroom decided the Borello take a look at was the correct take a look at to analyze.

In assessing the Borello take a look at, the Courtroom discovered that whereas Walmart offered clothes to Hill and instructed her on poses, Hill organized for her personal journey, deducted her enterprise bills from her taxes, didn’t obtain a W-2 from Walmart, modeled for different corporations whereas she was modeling for Walmart, labored for 15 complete days, was paid a every day flat charge as a substitute of an hourly wage, and was not supplied with any employment paperwork.  The Courtroom additionally famous that modeling will not be a daily a part of Walmart’s enterprise.

The Courtroom then went on to distinguish the three circumstances on which Hill relied.  First was Zaremba v. Miller, determined by the appellate division of the Los Angeles County Superior Courtroom on seemingly very related circumstances.  The court docket in Hill famous the putative employment relationship was a lot stronger in Zaremba as a result of the putative employer, a photographer, directed each side of Zaremba’s photoshoot, paid Zaremba an hourly wage, and the work Zaremba carried out was in the midst of the photographer’s major enterprise (i.e., images).

The court docket additionally dismissed Hill’s reliance on Smith v. Superior Courtroom (L’Oreal), which concerned a mannequin employed for a one-day job.  Nevertheless, the one difficulty in L’Oreal was the definition of “discharge” beneath part 203.  The employer conceded the mannequin was an worker for all different functions.  Subsequently L’Oreal’s holding was inapposite.

Lastly, the court docket distinguished Tieberg v. Unemployment Insurance coverage Appeals Board, a case involving tv writers, as a result of the plaintiffs signed an employment settlement and the hiring entity had important management over the writers’ actions.

Finally, the court docket discovered the circumstances Hill cited weren’t related or authoritative sufficient to render Walmart’s protection unreasonable.  It thus affirmed abstract judgment in Walmart’s favor.


There are a few pro-employer takeaways from Hill.  As an preliminary matter, the Ninth Circuit affirmed the ABC take a look at set forth in Dynamex, which is tougher to fulfill than the widespread regulation Borello take a look at, doesn’t apply to each alleged employment relationship.  Relatively, its utility is proscribed to circumstances alleging violations of the Wage Order.

Additional, Hill held that, to prevail on abstract judgment, an employer needn’t show the deserves of the nice religion protection, so long as there is no such thing as a dispute that such a protection is affordable.  Importantly, the Courtroom didn’t resolve whether or not Hill was the truth is an worker of Walmart, however quite it discovered that Walmart had a very good religion protection to Hill’s claims.  The Courtroom thus offered a path for employers to receive abstract judgment with out having to flip to the deserves of the plaintiff’s declare.

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