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Wed Dec. 3rd, 2014 PTWWW Legal Alert

Employee Was Not Within Course and Scope of Employment While Driving Home from Work

In Lobo v. Tamco, Daniel Lobo was killed by Luis Del Rosario while Del Rosario was leaving the premises of his employer, defendant Tamco, to go home for the day.  Del Rosario was driving his personal vehicle at the time of the accident.  After the accident, Lobo’s survivors filed a wrongful death lawsuit against Tamco, alleging that Del Rosario was acting within the course and scope of his employment by Tamco at the time of the accident.  After trial, a jury found that Del Rosario was not acting within the course and scope of his employment at the time of the accident, and judgment was entered in favor of Tamco.  The Court of Appeal affirmed, holding that Del Rosario’s infrequent use of his vehicle for Tamco business did not confer a sufficient benefit to Tamco so as to make it reasonable to require Tamco to be vicariously liable for Del Rosario’s negligence while operating the vehicle.

Workers Were Misclassified as Independent Contractors Despite Signing Agreements To the Contrary

In Sawin v. The McClatchy Co., plaintiffs were newspaper carriers who signed agreements with defendant stating that they were “independent contractors.”  Plaintiffs filed a class action lawsuit against defendant for unpaid mileage expenses under the California Labor Code.  In determining whether the plaintiffs were misclassified as “independent contractors,” and therefore denied mileage expense reimbursement in violation of the California Labor Code, the court applied the “right to control” test, which analyzes whether an employer has sufficient control over a worker so as to constitute an employment relationship.  The court found that plaintiffs were, in fact, employees rather than independent contractors.  Even though the plaintiffs had signed agreements stating that they were independent contractors, the court found that the newspaper exercised such significant control over plaintiffs’ performance of their duties that it “belie[d] the contrary pronouncement in the form contracts…”

Court Dismisses Formulaic and Boilerplate Wage and Hour Complaint

In Landers v. Quality Communications, the Ninth Circuit Court of Appeals considered a complaint filed by plaintiff, a cable services installer, for wage and hour violations.  Defendant moved to dismiss the complaint because it failed to state a plausible claim for relief.  The district court agreed, noting that the complaint lacked any factual allegations approximating the number of overtime hours plaintiff allegedly worked, or the amount of overtime pay to which he was allegedly entitled.  The district court found that a formulaic recitation of the elements of a wage and hour violation was simply not enough to state a plausible claim for relief.  On appeal, the Ninth Circuit Court affirmed the district court’s decision.  The Ninth Circuit ruled in accordance with the First, Second, and Third Circuits in finding that in order to state a plausible claim for relief for wage and hour violations, a plaintiff must at least allege a specific week during which he worked more than 40 hours without being properly paid for his time worked.