Metropolitan News-Enterprise


Thursday, February 18, 2021


Page 1


Court of Appeal:

Classification of Instacart Shoppers Must Be Redecided

Preliminary Injunction Reversed in Light of Vague Wording and Intervening Passage of Proposition 22


By a MetNews Staff Writer


Div. One of the Fourth District Court of Appeal yesterday reversed an order granting a preliminary injunction to bar Instacart, a shopping and delivery service, from improperly classifying its personnel as independent contractors, holding that the judge used impermissibly vague phraseology and that the uncertainty spawned by his wording is compounded by voter passage in November of Proposition 22.

That initiative, approved by 59 percent of the votes, in general allows app-based transportation and delivery companies to categorize those who work for them as independent contractors.

San Diego Superior Court Judge Timothy Taylor on Feb. 18, 2019 found that the City of San Diego had shown a probability of succeeding on the merits in showing that Instacart was improperly classifying its shoppers. Desiring to leave it to the defendant to decide whether to denominate them employees or to grant them such a degree of autonomy as to render them true independent contractors, he issued a preliminary injunction that enjoins the company “from failing to comply with California employment law with regard to its Full-Service Shopper employees within the City of San Diego.”

Impermissibly Vague

That wording, Justice Judith McConnell said in yesterday’s unpublished opinion, is impermissibly vague, elaborating:

“[T]he record makes clear the superior court drafted the injunction in a manner that requires Instacart to determine how to comply with a decidedly undeveloped area of law. By doing so, the court failed to provide adequate notice of the conduct proscribed by the injunction….Given the record in this case, there can be no doubt people of common intelligence would differ as to the meaning and application of the relevant law in this context.”

She continued:

“The issue is further compounded by the recent passage of Proposition 22. Proposition 22 allows ‘app-based drivers’ to be classified as independent contractors, so long as they meet four express conditions set forth in the statute….”

‘ABC’ Test

Taylor had founded his decision on the “ABC” test set forth by the California Supreme Court in its 2018 decision in Dynamex Operations West, Inc. v. Superior Court. There, Chief Justice Tani Cantil-Sakauye wrote:

 “Under this test, a worker is properly considered an independent contractor to whom a wage order does not apply only if the hiring entity establishes: (A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact; (B) that the worker performs work that is outside the usual course of the hiring entity’s business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.”

McConnell declared:

“Here…the injunction requires Instacart to follow the law, but the law has now changed, and the parties disagree as to the impact of that change, namely whether Proposition 22 precludes the application of the ABC test in this case. No court has addressed this issue. Accordingly, there is no way for Instacart to know whether it is, or is not, complying with the law or the injunction, and the injunction must be reversed.”

Instacart also argued that Taylor improperly acted on the motion for a preliminary injunction because its motion to compel arbitration was pending. McConnell said Taylor was under no obligation to delay a ruling on the preliminary injunction until he heard Instacart’s motion and, in any event, Instacart was not prejudiced because the preliminary injunction was stayed pending the outcome of the appeal.

The case is People v. Maplebear, Inc., D077380.


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