Duffey v. Tender Heart Home Care Agency, LLC, 31 Cal. App. 5th 232 (2019)

Nichelle Duffey sued Tender Heart Home Care Agency for employment-related wage and hour claims such as unpaid overtime under the California Domestic Worker Bill of Rights (“DWBR,” Cal. Labor Code §§ 1450, et seq.). The trial court granted Tender Heart’s motion for summary judgment after determining that Duffey was an independent contractor and not an employee under the “common law” test. The Court of Appeal reversed, holding that the trial court should have applied the legal standard set forth in the DWBR itself rather than California Supreme Court precedent from 1989 and that the statute creates a dispute of fact as to whether Duffey was an independent contractor or employee. The Court further held that there is a disputed issue of fact as to whether Tender Heart is a non-employer employment agency within the meaning of the statute.

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Photo of Tony Oncidi Tony Oncidi

Anthony J. Oncidi heads the Labor & Employment Law Group in the Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection. A substantial portion of Tony’s practice involves the defense of employers in large class actions, employment discrimination, harassment and wrongful termination litigation in state and federal court as well as arbitration proceedings, including FINRA matters.