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


In a current belief in Hill v. Walmart Inc., the Ninth Circuit affirmed summary judgment in favor of Walmart on Hill’s claim for waiting time penalties underneath Labor Code part 203, finding there was a excellent-faith dispute about no matter whether Hill was correctly labeled as an impartial contractor of Walmart.

The Points

Hill delivered modeling solutions to Walmart for a whole of 15 non-consecutive days in 2016 and 2017.  Walmart contracted with Hill’s company and paid out the company a flat price for Hill’s solutions.  Through the photoshoots, Walmart offered Hill with outfits and informed her how to pose.  Hill compensated for her have journey and deducted her small business costs from her taxes.  Hill did not obtain a W-2 from Walmart or sign any work-similar documents.

In 2019, Hill sued Walmart alleging it experienced not paid her all wages on “discharge,” or at the conclusion of each and every shoot, and she thus claimed Walmart owed her waiting time penalties underneath Labor Code part 203.  The district courtroom granted summary judgment in Walmart’s favor, finding there was a superior-religion dispute as to no matter whether Hill was an worker of Walmart.

The Attractiveness

On appeal, Hill argued that Walmart could not depend on the superior-faith dispute defense mainly because it requires “a great religion dispute that any wages are due” and Walmart did not dispute that some wages had been thanks.  Rather, Walmart only disputed when people wages had been thanks.  The Ninth Circuit rejected this argument and pointed out “wages” are particularly described as “all quantities for labor carried out by staff.”  If Hill was in the end observed to be an unbiased contractor, she would not be entitled to fast payment of “wages.”

The Ninth Circuit then turned to the merits of the good-religion dispute protection.  To prevail on the fantastic-religion dispute defense, the defense are not able to be marred by bad faith perform.  The Court docket concluded there was almost nothing in the report to counsel “bad faith” on Walmart’s section.

The defense must also be objectively fair, even if it is not eventually profitable.  In figuring out whether or not Walmart’s defense was acceptable, the court first had to identify which check of work utilized.  Beneath the prevalent law Borello examination, courts glimpse to a listing of factors, of which the correct to regulate the way and usually means of the perform is the most essential.  Under the ABC take a look at set forth in Dynamex (which, though determined in 2018, has been held to use retroactively), an entity need to verify the individual’s do the job was exterior the regular system of the selecting entity’s organization (among other points).

The Courtroom first noted the ABC examination did not replace Borello in all conditions.  Somewhat, the Courtroom uncovered that the ABC check only applies to cases governed by the Wage Orders.  Mainly because Hill did not allege Walmart violated any Wage Purchase, the Courtroom established the Borello examination was the suitable take a look at to assess.

In examining the Borello exam, the Court found that though Walmart provided garments to Hill and instructed her on poses, Hill organized for her personal travel, deducted her small business charges from her taxes, did not obtain a W-2 from Walmart, modeled for other providers though she was modeling for Walmart, worked for 15 whole times, was compensated a day by day flat fee alternatively of an hourly wage, and was not supplied with any work files.  The Court docket also famous that modeling is not a standard section of Walmart’s enterprise.

The Court docket then went on to distinguish the three situations on which Hill relied.  Very first was Zaremba v. Miller, determined by the appellate section of the Los Angeles County Superior Court on seemingly incredibly equivalent conditions.  The court in Hill noted the putative work romance was substantially stronger in Zaremba for the reason that the putative employer, a photographer, directed each facet of Zaremba’s photoshoot, paid out Zaremba an hourly wage, and the work Zaremba executed was in the class of the photographer’s most important company (i.e., photography).

The court also dismissed Hill’s reliance on Smith v. Top-quality Courtroom (L’Oreal), which involved a design hired for a just one-working day work.  On the other hand, the only challenge in L’Oreal was the definition of “discharge” less than segment 203.  The employer conceded the model was an personnel for all other needs.  For that reason L’Oreal’s keeping was inapposite.

Finally, the courtroom distinguished Tieberg v. Unemployment Coverage Appeals Board, a case involving tv writers, simply because the plaintiffs signed an work arrangement and the hiring entity experienced sizeable control over the writers’ activities.

In the end, the court found the scenarios Hill cited ended up not related or authoritative enough to render Walmart’s defense unreasonable.  It as a result affirmed summary judgment in Walmart’s favor.


There are a couple of professional-employer takeaways from Hill.  As an initial make any difference, the Ninth Circuit affirmed the ABC test set forth in Dynamex, which is tougher to satisfy than the prevalent legislation Borello test, does not apply to each and every alleged work marriage.  Somewhat, its software is minimal to instances alleging violations of the Wage Order.

More, Hill held that, to prevail on summary judgment, an employer need not verify the deserves of the good faith defense, as long as there is no dispute that these kinds of a protection is acceptable.  Importantly, the Court did not come to a decision regardless of whether Hill was in reality an personnel of Walmart, but relatively it discovered that Walmart experienced a very good religion protection to Hill’s claims.  The Court docket so supplied a path for companies to receive summary judgment with out obtaining to change to the merits of the plaintiff’s declare.


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