DYNAMEX OPERATIONS WEST v. S.C.

Amicus Curiae, California Rural Legal Assistance Foundation, National Employment Law Project, and Los Angeles Alliance for a New Economy, Supplemental Brief

Cal.January 18, 2018

CLEck Ar Ae Se Ae V Waid Citi ad GuP a Qk fa : n BA Ate ee ek ee SUPREME COURT January 17, 2018 F | LED a Honorable Tani Cantil-Sakauye, Chief Justice JAN 18 2018 . . and the Associate Justices California California Supreme Court Jorge Navarrete Clerk R. 350 McAllister Street ural San Francisco, CA 94102-4797 Deputy Legal RE: Dynamex Operations West, Inc. vs. Superior Court, No. Assistance $222732 . Order filed December 28, 2017 requesting supplementalbriefing Foundation Dear Chief Justice Cantil-Sakauye and Associate Justices: Amagda Pérez, Esq. .. . . . . . Executive Director Amici curiae California Rural Legal Assistance Foundation (hereafter, Mark S. Schacht CRLAF), the National Employment Law Project, and the Los Angeles Alliance Deputy Director for a New Economy, which havepreviously filed a brief in support of Real Jennifer Cesario Partiesin Interest, submit this supplemental letter brief addressing the Court’s DevelopmentDirector question: : SgennaCTORS Is the pertinent wage order’s suffer-or-permit-to-work definition of “employ” properly construed as embodying a Christine Brigagliano, Esq. . * test similar to the “ABC” test that the New Jersey Supreme Joseph Jaramillo, Esq Court, in Hargrovev. Sleepy’s LLC (N.J. 2015) 106 A.3d Manuel Magafia 449, 462-465, held should be used under the New Jersey Richard Pearl, Esq. Wage and Hour Law whichalso defines “employ”to include Peder Thoreen, Esq, “suffer or to permit to work” (N.J. Stat. ' 34:11-56a1)? Rosario Vasquez INTRODUCTION Virginia Villegas, Esq. In 2010, this Court concluded that the historical meaning of the Silvia Garcia j (1968-2012) Industrial Welfare Commission’s definition of “employ” remainsnot only the REGIONAL PROJECTS law of California but “continues to be highly relevant today.” (Martinez v. Ceres/Modesto Combs (2010) 49 Cal.4th 35, 69.) Accordingly, the undersigned Amici --Rural Health Advocacy 5 : respondas follows to the Court’s question. Fresno ~enmigration&Cinzenship 1. “[EJmploy”is plainly and unambiguously defined by the Industrial Communities Welfare Commission Orders (“wage orders”) as “to ... suffer or permit to; 8 Pp Oakland svocacy for F work”. “Employer” liability neither incorporates nor depends upon a - Oma vocat Or Farm . . . . . . . . Workers ‘ . separate, prior determination to determineifplaintiff and defendant were in Projeeen Woes an “employment”relationship for purposes of the “suffer or permit” inquiry.’ Sacramento This Court has recognizedthat, at the time the IWC incorporated these termsg --Education Equity ~-Immigration& Citizenship. Licgation ces ‘Industrial Welfare Commission Order No. 9-2001 (Transportation PactIndustry) §§ 2(E),(G), (8 Cal.Code Regs ' 11090). The IWC’s other wage Procnmmer Safety orders contain identical language. (Martinez, supra, 49 Cal.4th, at 57.) --Rural Housing Project --Rural Health Advoc. . . .~Sustainabe Rul *The wageorders further provide a workeris, alternatively, ommunities Vista --Border & Human Rights into its several promulgations, this language was widely usedbylegislative bodies, advocates andcourts and wasconsideredplain and unambiguous.’ To now replace “suffer or permit to work” with another State’s test or definition of “employ”violates well-understood rules of construction, contradicts the respective intents of California Legislature in authorizing the [WC to regulate wages, hours and working conditions and the Commission in thereafter promulgating its wage orders. 2. The extensive and unambiguouslegislative histories makeclear that: “suffer or permit to work” wasdistinct from any concept of “employ”; it regulated conduct beyond and outside common-law employmentrelationships; and it extended “employerliability” to independent contractors and their employees. This application of the doctrine was recognized and approved bythe respective courts of sister states which had adopted “suffer or permit to work” in the samehistorical time frame. The California Legislature in authorizing the [WCand,in turn, the IWCin promulgating its “wage orders” unequivocally intended that no test of or definition for “employ”(or “employmentrelationship’’) be interposed as a condition for determining whether a defendant “suffer[ed] or permit[ted] to work” an aggrievedplaintiff. 3. This Court has concludedthat the historic legislative intent in authorizing the IWC to regulate, and the historic [WC intent in promulgating its wage orders incorporating “suffer or permit to work” must control California courts’ construction and application of the wage orders. Consequently, neither the New Jersey ABCtest nor any other test for “employ” outside the consistent, historic meaning of “suffer or permit to work” should be used to determine whetheroneis “employed” under California’s “suffer or permit to work”definition of employer liability. Amici’s arguments below incorporate significant content from briefs filed previously in this Court by appellants in Case No. $121552, Miguel Martinez, etal. vs. Combs,etal., (Martinez v. Combs, (2010) 49 Cal.4th 35).* In preparationofthis letter “employed”if the defendant engages” the aggrieved person. This Court has concluded that this language incorporates the common-law definition. The extent to which “engage” mayprovide a basis for incorporation of the New Jersey (or any other) test is not raised by the Court’s question nor further addressedhere. ‘See, e.g., Curtis & Gartside Co. v. Pigg (Okla. 1913) 1913 Okla. LEXIS 450, at pp. 12-13 [39 Okla. 31], cited by this Court as one “of the most notable [decisions]” applying “suffer or permit to work”. (49 Cal.4th, supra, at 58 n. 26.) ‘At various placesherein,this letter brief incorporates substance and/or language from, respectively: Appellants’ Opening Brief on the Merits (filed January 20, 2006); Appellants’ Reply Brief on the Merits (filed June 13, 2006); and, Appellants’ Answer to Amici in Support of Respondents (filed August 2, 2006). 2 brief, Amici have associated as Of Counsel, William G. Hoerger, who wasthe principal authorofthose briefs and lead counsel for appellants in the Martinez case. ARGUMENT I. THE TWC WAGE ORDERS FACIALLY AND PLAINLY DEFINE “EMPLOY”AS TO “SUFFER OR PERMIT TO WORK”; NO FURTHER EXTRANEOUSDEFINITION OR TEST FOR “EMPLOY”IS PROPER The wage orderplainly states that one is an “employer” conditioned uponthe fact that he, she or it either directly or indirectly “employs” any person(or, alternatively since 1947, “exercises control” over certain factors - a subject not addressed here).° Central to the Court’s question, employ is itself defined in - and by - the wage orders. To “employ” means“to engage, suffer, or permit to work®; “employis defined by “suffer or permit” (and additionally by other terms not included in the Court’s question) - - not the reverse. To read the wage order in such a manner, or to apply an extraneoustest of “employ” upon “suffer or permit” would trespass outside the plain language of the wage order and would imposea species of circular reasoning in its application. This Court recognized in Martinez that “suffer” or “permit to work” were not abstract, unknown terms when the Commission promulgatedits definitions: these terms had beenwell-understood for years by sister-state legislatures, advocates and the body politic, and had been consistently construed for years by courts in the many states which preceded California in adopting this doctrine. (49 Cal.4th, supra, at 57-58, citing and quoting, Curtis & Gartside v. Pigg (Okla. 1913) 39 Okla. 31 [1913 Okla LEXIS 450] and Purtell v. Philadelphia & Reading Coal & Iron Co. (Ill. 1912) 256 Ili. 110 [99 N.E. 899]). The Purtell court, referencing the statutory terms “employ[]”, “permit[]” and “suffer[]”, stated, They very plainly say ... The inhibition is just as strong and positive against permitting or even suffering a child of this age to do such thingsasit is against employing him to do them ... each of the terms... is given a distinct office in the general plan of prohibition ...the reasonable presumptionis that ... [the Legislature] intended to apply an equally prohibitive force to each of the terms chosen, and each term should be given its ordinary significance... (Purtell, supra, 1913 Okla LEXIS 450,at pp. 12-13, boldface added.) Moreover, the proposition that application of “suffer or permit” is conditioned upon someprior determination of “employment” wasrejected over 100 years ago, a rejection that this Court observed with approval in Martinez. [An] argumentthat the [“suffer” or “permit”] standard could “only apply whenthe relation of master and servant actually exists ... would leave the words ‘permitted or suffered to work’ practically without meaning.” Order 9-2001, supra, & 2(G). *Id., & 2(E). (49 Cal.4th, supra, quoting, Purtell y. Philadelphia & Reading, supra, 99 N.E., at 902.)’ Where words, assigning their usual and ordinary meanings and construing them in context, are not ambiguous, this Court “presumes the Legislature meant what it said, and the statute’s plain meaning governs. (Martinez, supra, 49 Cal.4th, at 51). Consequently, application of the New Jersey test - or any other test outside the [WC’s definition of “employ”- contradicts the plain language of the wage orders themselves, and should not be applied. And,as will hereafter be demonstrated, incorporation of such a construction upon “suffer or permit to work”also contradicts the manifest intent of the California Legislature® and the Commission. Il “SUFFER” OR “PERMIT TO WORK” WERE NOT CONDITIONED BY ANY PRINCIPLES OR DOCTRINE OF EMPLOYMENTBUT, RATHER, THE CALIFORNIA LEGISLATURE AND THE INDUSTRIAL WELFARE COMMISSION INTENDED THAT THEYBE DISTINCT IN MEANING FROM “EMPLOY” AND REGULATE CONDUCT BEYOND EMPLOYMENT RELATIONSHIPS This Court has emphasized that remedial employmentstatutes should be construed with “consideration of the remedial purpose ofthe statute, the class of persons intended to be protected,” and with “particular reference to the ‘history and fundamental purposes’ of the statute”. (S.G. Borello & Sons v. Dept. ofIndustrial Relations (1989) 48 Cal.3d 341, 351, 353-354.) Similarly, where regulatory language is subject to more than one reasonable interpretation, the cardinal rule of construction is that the court should ascertain the intent of the promulgating bodyso as to effectuate the intended purpose of the administrative regulation. (Cal. State Restaurant Assn. v. Whitlow (1976) 58 Cal.App.3d 340, 344-345; see, also, In re Harris (1995) 5 Cal.4th 813, 844; California Grape, etc. League v. Industrial Welfare Com. (1969) 268 Cal.App.2d 692, 698, referring to Labor Code, '' 1171-1398.) “Generally, the same rules of construction and interpretation which apply to statutes govern the construction and interpretation of rules and regulations of administrative agencies.” (Cal. Drive-In Restaurant Assn. v. Clark (1943) 22 Cal.2d, 287, 292.) The widerhistorical circumstances of the adoption or enactmentare persuasive in divining intent. (American Tobacco Co. v. Superior Court (1989) 208 Cal.App.3d 480, 486; Steilberg v. Lackner (1977) 69 Cal.App.3d 780, 785.) When the promulgating body uses language or terms that had at the time a well-known meaning at commonlaworin the law of this country, the words are presumed to have been used in that sense. (People "Elsewhere in Martinez, this Court identified Purtell as one “of the most notable” “[o]f the many decisions applying.. . [‘suffer or permit to work’] statutes before 1916 ...” (49 Cal.4th, supra, at 57 n. 26.) gcc[T]he Legislature intended the [WC’s wageorders to define the employment relationship in actions under [Labor Code Section 1194].” (49 Cal.4th, supra, at 52.) 4 v.. Overstreet (1986) 42 Cal.3d 891, 897. See also, Steilberg, supra, 69 Cal.App.3d at 785 (“...the courts should consider not only the words used, but... the object in view,the evils to be remedied,the history of the times, legislation upon the same subject, public policy, and contemporaneousconstruction.”) Consequently, the meaning of “suffer or permit to work”as it was used and applied at the time of the regulation’s adoption is presumed, in absence ofproofto the contrary, to be the meaning the IWC intended when it adopted the definition. This Court said as much a mereeight years ago in referringto this historical context when it reviewed “suffer or permit” standard: Wesee no reasonto refrain from giving the IWC’s definition of “employ”its historical meaning. That meaning was well established when the IWCfirst used the phrase “suffer, or permit” to define employment, and no reason exists to believe the IWC intended another. Furthermore, the historical meaning continues to be highly relevant today: A proprietor who knowsthat persons are working in his or her business without having been formally hired, or while being paid less than the minimum wage,clearly suffers or permits that work by failing to prevent it, while having the powerto do so. (Martinez, supra, 49 Cal.4" at 69). A. At the Time California Addressed Regulating Wages, Hours and Working Conditions, “Suffer or Permit to Work” Was a Nationally- Recognized Model For Imposing EmployerLiability California’s 1913 act creating the [WC waspart of “a wave of minimum wage legislation that swept the nation during the second decadeofthe 20" century.” (Martinez supra, 49 Cal.4th, at 53.) In the instant matter, the Court’s pending question merits additional details of the history of the wage orders’ “suffer or permit to work” definition. 3 Connecticut wasthefirst state to enact a child labor statute embodying the “suffer” standard in 1855, and Maine followed in 1857. (Goldstein, Linder, Norton & Ruckelshaus, Enforcing Fair Labor Standards In the Modern American Sweatshop: Rediscovering the Statutory Definition ofEmployment (April 1999) 46 UCLA LAW REVIEW 983(hereafter, “Goldstein’’), 1016-1018, 1030.) Connecticut’s and Maine’s enactments followed the experience in Massachusetts which in 1842 had enacted a law imposing a ten-hour day for children under twelve in manufacturing establishments, but under which the company wasnotliable unlessit acted “knowingly.” The “knowingly” provisions led to easy evasion since it was only necessary for the employerto say that he did not know that any children under 12 were employedsince,if it had occurred, the children must have lied about their ages. (Goldstein, id, at 1031, citing, Otey, The Beginnings ofChild Labor Legislation in Certain States: A Comparative Study (1910) 6 REPORT ON CONDITION OF WOMAN AND CHILD WAGE-EARNERSIN THE UNITED STATES, S.DOC.No. 61-645, at 78.) New York State’s subsequent adoption of labor lawsillustrates the intended reach of “suffer or permit.” An 1876 statute in that state had prohibited employmentof children in certain fields or for immoral or obscene purposes. Unsurprisingly, some owners described injured children as “not employees.” In 1881, the state legislature enacted a criminalstatute providingthat “[a]ny person whoshall suffer or permit any child under the age of sixteen to play any gameofskill or chance in any place wherein... shall be guilty of misdemeanor.” Five yearslater, the legislature adopted this standard in regulating the employment of womenandchildren in manufacturing establishments. This law ... was regardedas “‘the real beginning of labor legislation in New YorkState. (Goldstein, supra, at 1032-1033, quoting, Hurwitz, THEODORE ROOSEVELT AND LABOR IN NEW YORK STATE1880-1900 (1943),at 45.) The “suffer or permit” language appearedin the 1903 revisions of the New York State provisions on women’s hours, the hours ofchild labor, and restrictions on child labor. (Calcott, CHILD LABOR LEGISLATION IN NEW YORK (1931) 27-28; Felt, HOSTAGES OF FORTUNE: CHILD LABOR REFORM IN NEW YORK STATE (1965), at 1, 39, 52.) Onebill, the Finch-Hill Factory Act, made the employer directly responsible for any illegally-working child foundin his factory. Underthe old factory law, employers had often avoided prosecution by claiming that the underage child worker must have “wandered in” for they personally had never hired the youngster. The Finch-Hill Act made the mere finding of a child under fourteen at work in a manufacturing establishment evidenceofillegal employmentby providing that no child under fourteen could be “employed, permitted, or suffered to work”in a factory. (Felt, id., p. 52.) A New York court interpreted this law as imposingliability on the employer even without knowledge ofthe child’s actual age and even thoughthe child had misled the employer. (City ofNew York v. Chelsea Jute Mills (Mun. Ct. 1904) 88 N.Y.S. 1084, 1090.) The New York amendments were viewedas a major turning pointin the effort to regulate work outside the factories by expanding the coverageof the statute and were in large part the result of the legislative drafting and media campaigning of the newly- formed New York Child Labor Committee (NYCLC). The NYCLC,in turn, was organized in large part by personsassociated with, first, the New York- - and then, the National - - Consumers League, the organization to which Louis Brandeis and Felix Frankfurter lent their efforts and expertise. “These reformers sought to eliminate the easy evasionsofthe existing law occurring outside factories, which were aided by the factory owners’ disingenuous claims of ignorance about conditions in the sweatshops with which they contracted.” (Goldstein, supra, at 1033-1034.) In 1911, after the revampeduse of “suffer or permit” in New York State, the National Consumers League (NCL)- selecting the best provisions from state statutes for its model Standard Child Labor Law - adopted “employed, permitted or suffered to work” as its prohibition standard. The NCL then began a campaignto secure state laws regulation wage rates for womenand children through advocacyofits modelbill. (Goldstein, id., at 1071-1072, citing, NATIONAL CONSUMERS’ LEAGUE, CHILD LABOR LEGISLATION: SCHEDULES OF EXISTING STATUTES AND THE STANDARD CHILD LABOR LAW: HANDBOOK(1905) '' 1-2, at 35.) The principles of “suffer or permit to work” quickly spread amongthestates. The movement to ensure that employers did not avoid liability and undercut intended protection of both child and women workers through subterfuges premised on tort concepts of the common-law employmentrelationship was well under way by the time the California Legislature took up the minimum-wagebill. By 1907, fourteen states already had on the bookschild labor laws containing the “permit or suffer to work” standard: Idaho,Illinois, Indiana, Kentucky, Maryland, Michigan, Minnesota, Missouri, Nebraska, New York, Oregon, RhodeIsland, South Dakota and Wisconsin. In addition, manystates used the “permit” standard in their child or women’s or other protective labor laws: Alabama, Arizona, California, Connecticut, Florida, Kansas, Maine, New Jersey, North Dakota, Oklahoma, Pennsylvania, Vermont, and Wyoming ... By World WarI, several more states had adopted the “employed, permitted or suffered to work” standard. For example, in 1913, Arizona enacted a law stating “No female shall be employed, permitted or suffered to work in or about any mine quarry or coal breaker,” (Goldstein, supra, at 1036-1037.) Asof 1913, when California adopted its minimum-wageact, the suffer or permit doctrine ofliability was used to regulate conditions of employment for both children and adults, including in some cases males. Amongthese: - New York (1886) regulated weekly hours ofwork for women through “knowingly employs or suffers or permits” (Goldstein, supra, at 1032-1033, citing, Act of May 18, 1886, ch. 409, § 4, 1886 N.Y. Laws 629, 269); - Maryland (1888) regulated daily hours of workers in the manufacture of yarns, fabrics or domestics through, “require, permit or suffer; and again (1898) used “require, permit or suffer,” to regulate daily hours of street railways employees; (Goldstein, id., 1032, citing respectively, Act of Apr. 5, 1888, ch. 455, 0 1, 1888 Md. Laws 734; Act of Mar. 24, 1898, ch. 123, § 1, § 793, 1898 Md. Laws,241, 543); - New York (1903) regulated women’s hours of work through “suffer or permit; (Goldstein, et al., id. p. 1033); - Congress (1907) regulated maximum, consecutive on-duty hours of common- carrier railway employees through “requiring or permitting” (Goldstein,id., p. 1066, citing, Act of Mar. 4, 1907, ch. 2939, § 2, 34 Stat. 1415, 1416); - Oregon (1910) regulated hours of certain underground miners through “permit or require”; and again (1911), regulated maximum, consecutive on-duty hours of common-carrier employees through “require or permit, (Sumner and Merritt, CHILD LABOR LEGISLATION IN THE UNITED STATES,U.S.Dept. of Labor Children’s Bureau (1915), respectively, p. 946, reprinting, LOL 1910 § 5058; pp. 947-948,reprinting, LOL 1911 ch. 137, § 2); - Arizona (1913) regulated daily and weekly hours ofwomen employedin certain businesses and in the same year further regulated seating conditions for women employees, both through “employed or be permitted to work” (Sumner and Merritt, supra, respectively, p. 507, reprinting, R S 1913 Pen C Pt. 1 t 19; p. 500, reprinting, R.S. 1913 Civ. C t 14 ch. 2, § 3115); - Again, Oregon (1913) established a ten-hour day for all workers in specified occupations through “require or permit” (Sumnerand Merritt, id., p. 953,. reprinting, 1913 ch. 102, §§ 1,3. In 1913, California adopted the minimum-wageact that created the Industrial Welfare Commission and delegated to it the powerto fix minimum wages, maximum hours of work and standard conditions of labor. (Stats. 1913, ch. 324, ' 13, p. 637; Martinez, supra, 49 Cal.4th at 50.) As will be shown below,the IWC then familiarized itself with efforts by the League and otherstates in the process of adopting the “suffer or permit to work”languagein its wage orders. B. “Suffer” and “Permit to Work” Were Historically Recognized as Distinct in Meaning From “Employ”, And Extended Liability Beyond Common-Law Employment Concepts Early state statutes using the “suffer or permit” standard were understood to defeat contractual relationships that attempted privately to define the employerrelationship by limiting it to a single person or entity. (Goldstein, supra, at 1042-1047.) As explained by Judge Learned Hand,these statutes regulating employment conditions “upset the freedom to contract” with respect to the control of those conditions. (Lehigh Valley Coal Co. v. Yensavage (2d Cir. 1914) 218 F. 547, 553.) As previously noted, a further goal was to eliminate owners’ evasions through “permitting” work to be done at homeor through intermediaries under the pretense that no employmentrelationship existed there. The “suffer or permit to work” statutes were well recognized as distinct from the common-law principles of employment. Referring to its state child-labor statutes, the Oklahoma Supreme Court in 1913 madeclear the distinction: The inhibition is just as strong and positive against permitting or even suffering a child of this age to do such thingsasit is against employing him to do them. The manifest purposeofthe law is to positively prevent children of this age from doing work ofthis character, and each of the 8 terms,“employed,” “permitted,” and “suffered,” is given a distinct office in the general plan ofprohibition... The moving intent of the Legislature being to positively prevent children from engaging in hazardous work,... [EJach term should be givenits ordinary significance.If the statute went no farther than to prohibit employment, then it could be easily evaded by the claim that the child was not employed to do the work which caused the injury, but that he did it of his own choice andat his ownrisk; and if prohibited on the employmentandpermitting a child to do such things, then it mightstill be evadedby the claim that he was not employed to do such work, nor was permission given him to do so. But the statute goes farther, and makes use of a term even stronger than the term “permitted.” It says that he shall be neither employed, permitted, nor suffered to engage in certain works... (Curtis & Gartside Co. v. Pigg, supra, 1913 Okla. LEXIS 450, at pp. 12-13, italics added.) California’s rule of construction is identical to that applied by the Oklahoma court. (Pigg, supra.) Wheneverpossible, effect and significance must be given to every word in a statute when pursuingthe legislative purpose, and a court should avoid a construction that makes some wordssurplusage. (Garcia v. McCutchen (1997) 16 Cal.4th 469, 476; Moyer v. Workmen’s Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230, 234.) Courts clearly understood that suffer or permit was designedto apply to actionable conductthatfell outside the common-law employmentrelationship. TheIllinois Supreme Court, reviewing that state’s 1903 Child Labor Act mandating that “[n]o child under the age of fourteen years shall be employed, permitted or suffered to work at any gainful occupation...” in specified industries, rejected the defendant company’s contention, “that this act can only apply whenthe relation of master and servant actually exists. We cannot agree with this contention.” (Purtell, supra, 99 N.E. 899, 902, italics added.) In People ex rel. Price v. Sheffield Farms-Slawson-Decker Co.- - which arose not as a tort case but from a state inspector’s citation based upon his observations while on patrol? - - then Judge Cardozoexplained that a business owner’s orproprietor’s liability under suffer or permit “rests upon principles wholly distinctfrom those relating to master and servant’. ((N.Y.Ct. Appls. 1918) 121 N.E. 474, 475. Italics added.) “The basis of liability is the owner’s failure to perform the duty of seeingto it that the prohibited condition doesnot exist.” (Sheffield Farms, supra, (App.Div. 1917) 167 N.Y..S. 958, aff'd, (N.Y.Ct.Appls 1918) 225 N.Y. 25 [121 N.E. 474] (italics added).) Thus “suffer or permit to work” analyses are far removed from the “common-law principles” of employment“developed to define an employer’s liability for injuries caused by his employee.” (Borello, supra, 48 Cal.3d, at 351-352.) This Court has endorsed“the distinction betweentort policy and social-legislation policy [that] justifies departures from the commonlawprinciples” when considering a “remedial statutory purpose.” (Borello, id., at 353-354.) Moreover, this Court recognized that adherenceto a traditional common-law interpretation, “would suggest a disturbing meansof avoiding an "Cf, Borello, supra, 341 Cal.3d, at 348 fn.4. 9 employer’s obligations under... California legislation intended for the protection of “employees,” including ... laws governing minimum wages[and] maximum hours....” (d., p. 359). New Jersey’s recent decision in Hargrove ignoresthis historical context. See Hargrove, supra, 106 A.3d at 463 (referring to the plain statutory language, agency deference, and statutory purpose, but omitting any referenceto historical context). In doing so, that court departed from the historical recognition of a standard that extends beyond the commonlaw, whenopting instead to replace “suffer or permit” with the ABC Test which starts with the determination of employeestatus. See id., supra, 106 A.3d at 464-65 (acknowledging that the D’Annunziotest it ultimately rejects arises from legislation “designed to reach those nottraditionally considered an employee under the commonlaw.’”’) This Court has taken a materially different approach from New Jersey, deferring to the Industrial Welfare Commission’srich historical context and use of “suffer or permit.” See Martinez, supra, 49 Cal.4" at 69 (“Statutes so phrased were generally understood to imposeliability... despite the absence of a common law employmentrelationship... we see no reason to refrain from giving the [WC’s definition of ‘employ’ its historical meaning.”) There is nothing new in the development of California labor law that warrants disturbing this decision by applying New Jersey’s standard when construing the discrete suffer or permit relationship. C. The California Legislature Intended That the IWC Regulate Wages, Hours and Conditions Beyond Common-Law Relationships Asthis Court has observed (Martinez, supra, 49 Cal.4th at 53-55), adoption of wage regulation in California was part of the general movementin California and therest of the nation for remedial labor legislation that characterized the “Progressive Movement” which supported Theodore Roosevelt on the national stage and,in California, Hiram Johnson. (See, e.g., Elizabeth Brandeis, Labor Legislation: Minimum Wage Legislation, in Commons, etc. 3 HISTORY OF LABOURIN THE UNITED STATES 1896-1932 (1935) 501-539, 514-515, 518;'° Nash, The Influence ofLabor on State Policy 1860 - 1920 (1963), 42 CALIFORNIA HISTORICAL SOCIETY QUARTERLYNo.3, 241, 245-246; Hundley, Katherine Philips Edson and the Fightfor the California Minimum Wage 1912-1913 (1960), 29 PACIFIC HISTORICAL REVIEW No.3, 271, 273-274; Jacqueline R. Braitman, KATHERINE PHILIPS EDSON: A PROGRESSIVE-FEMINIST IN CALIFORNIA’S ERA OF REFORM,Dissertation, University of California-Los Angeles (1988) pp. 195-203;'’ Susan Diane Casement, The original Commons’treatises are in the collection of the University of California-Berkeley library. They were re-issued in 1966, in REPRINTS OF ECONOMICS CLASSICS, Augustus M. Kelley, Publishers, New York. These, too, are in the University of California library. "The Braitman dissertation, issued through University Microfilms International Dissertation Information Service, is on file at the California State Library in Sacramento. 10 KATHERINE PHILIPS EDSON AND CALIFORNIA’S INDUSTRIAL WELFARE COMMISSION 1913 - 1931, thesis (1987), Kansas State University.) One scholar has described this epoch as follows: ..-.California was oneofthe leading states in this progressive movement[in the United States]...[I]n 1910 under the leadership of Hiram W. Johnson, who waselected governorin that year, the old control was displaced. Then in the space of two years time the people of the state were given the Initiative, the Referendum and the Recall, woman suffrage, a practically direct primary and the Australian ballot. (Earl C. Crockett, THE HISTORY OF CALIFORNIA LABOR LAW LEGISLATION 1910-1930, thesis (1931) Graduate Division of the University of Pennsylvania, pp. 2-3.) The National Consumers’ League campaign was supported not only by the California Consumers’ League, but also by, among others, the California Federation of Women’s Clubs, led by Katherine Philips Edson. (Goldstein, supra, 1033-1034; Brandeis, supra,at 507-514; Nash, supra, at 245-246; Hundley, supra, at 273-274; Braitman, supra, at 195, 200-201, 410; Casement, supra, at 2; David Von Drehle, TRIANGLE: THE FIRE THAT CHANGED AMERICA(2003), 196-199, 214-215.) California’s [WC/Minimum WageAct of 1913 (Stats 1913, ch. 324, ' 13, p. 637), ....was thus part of a national reform movementas well as a product of the state in the midst of its own reform revolution. The most prominent supporters of the legislation were the state and national Consumers’ leagues, the national Conference of Charities and Corrections, the California Federation of Women’s clubs, the Church Federation of Los Angeles, the Women’s Christian Temperance Union, the California Civic League, the Socialist Party, and progressives from both majorparties. (Braitman, supra, pp. 200-201; see, also, id., pp. 197-198.)'? In states such as California where women’ssuffrage had been achieved,’” the progressives’ newly-enlarged political power wasfocused overwhelmingly on minimum wageandother remedial labor legislation. Womenand children figure more prominently in the legislation proposedat the first bifurcated session than ever before in the history of the California legislature. Undoubtedly this is due in a considerable degree to the enfranchisement of women. Women’sclubs have exerted a powerful influence in the preparation andintroduction ofbills for women and children... "The Braitmandissertation, issued through University Microfilms International Dissertation Information Service,is on file at the California State Library in Sacramento. Women’s suffrage was achieved in California on October 10, 1911 by special election. (Braitman, supra, at p. 141.) 11 ... The women who worksis to occupya legislative storm center after the interregnum. That storm will be precipitated by the hearings on the measures analyzed herewith... (George A. Van Smith, “Proposed Legislation”, SAN FRANCISCO CALL,February 12, 1913, p. 1;'* see also, Brandeis, supra, at 506-507, 513-515; Nash, supra, at 245-246; Braitman, supra, at 108, 174, 410; Casement, supra, at 16-18; Von Drehle, supra, 15, 196, 214-215."° Next to the suffrage, minimum wage and child labor were the key thrusts of the women’s movement. In California, credit for the minimum wagebelongsto the California Federation of Women’s Clubs, led by Katherine Philips Edson, supported by the Progressives (who by 1913 occupied a solid majority in the California Legislature) (Brandeis, supra, at 507, 513-515; Nash, supra, at 245-246; Braitman, supra, at 195-203; Hundley, supra, at 273- 277; Crockett, supra, pp. 66-77.)'° Philips Edson, as a memberofthe executive board of the California Federation of Women’s Clubs, selected Assembly Bill 1251 and thereafter served asthebill’s chief lobbyist on behalf of the Federation. During this time, Edson consulted closely with Florence Kelley, the Executive Director of the National Consumers League. (Braitman, supra, at 176, 203; Casement, supra, at 2, 8, 15, 196.) The California statute establishing the IWC,like those of other states, followed the model minimum wagelaw prepared by Florence Kelley of the National Consumers League. (Casement, supra, at 2.) Thereis little room for doubt that the California Legislature and the Governor were well aware of trends outside the state as they delegated to the Commission the powerto fix wages and conditions for women and minors “engaged in any occupation, trade or industry.” Thus, the Commission’s authorization to establish minimum wages wasnotlimited to protecting those workers whofell within the then-common-law concept of “employment.” The Act explicitly empowered the Commission,“to fix... [a] minimum wageto be paid to women and minors engaged in any occupation, trade or industry ...” (Stats. 1913, supra, p. 635, ' 6 (italics added).) The bill was approved by a wide margin, passing the Assembly bya vote of 46 to 12 and the Senate by 27to 7. (Hundley, supra, at 276-277.) “The Van Smith article then proceeds to describe the “Women’s Eight Hour Law” (S.B. 466); the “Welfare Commission” Law (S.B. 1134 and A.B. 1251); and the “Minimum Wages for Women and Minors” Law (S.B. Nos. 8 and 24, and A.B. No.44). A.B. 1251 becamethe bill selected by Katherine Philips Edsonas the vehicle for enacting the IWC. '*Mr. Von Drehle’s book was published by the Atlantic Monthly Press, ofNew York City. ‘The Crockett thesis is available through Interlibrary Loan from the Robert Crown Law Library, Stanford Law School, Stanford University. 12 Moreover, the California legislatureitself had already adopted the permit to work standard in both regulating working conditions andin prohibiting certain types of work. (“An act regulating the employment and hoursoflaborof children...”, Stats 1905, ch XVII, ' 2,p.11.) The “permitted” language wasretained in amendmentsto the act in 1909 (Stats. 1909, ch. 254, ' 2, p. 387), 1911 (Stats. 1911, ch. 116, ' 2, p. 283), and 1913 (Stats. 1913, ch. 214, ' 2, p. 365). Asthis Court previously concluded, the Legislature’s intent that the IWC’s wage orders define the employmentrelationshipin actions (private or otherwise) under Labor Code Section 1194 is “unmistakeabl[e.]” (Martinez, supra, 49 Cal.4th at 52.) “Today, the laws defining the IWC’s powers and duties remain essentially the same as in 1913 with a few important exceptions” including an amendmentto the State Constitution to confirm the Legislature’s authority to confer on the IWC its present powers and an expansionofits jurisdiction to include all employees, male and female. (Id, at 5 5.) D. The IWC Intended “Suffer or Permit to Work” to Extend Employer Liability Beyond Common-Law EmploymentConcepts Following the Legislature’s establishing the [WC in 1913 andaffirmationofits constitutionality in 1914 by an initiative, Katherine Edson, the drafter and chief proponentofthe Act, becamethe first woman appointed to the IWC. From 1916 to 1931 she served as the [WC’s Executive Officer. (Casement, id., 2, 16-18.) In implementing its powers, the Commissionersvisited other states and reviewed the conditions they foundtherein. (Industrial Welfare Commission Records, WC Minutes, March 12, 1915"’ (“The reports of Commissioner Edson on conditions in New York and Massachusetts were read and ordered filed.”); JWC Minutes, April 10, 191 538 (“Commissioner Edson madeoral report supplementingher written report of conditions she foundin variousotherstates visited by her.”); at p. 15 (“During the early part of 1915, Commissioner Edsonvisited the Industrial Welfare Commissions of Oregon and Washington, also the Minimum Wage Commission of Massachusetts, membersofthe Factory Investigating Commission ofNew York...”).!?] 2 The IWCalso studied the work and recommendations of the advocacy groups promoting modellegislation, including the National Consumers’ League. [IWC Minutes, "Amici request that the Court take judicial notice of the official acts of the California Industrial Welfare Commission cited here and following. (Evidence Code Sections 459(a),(b).) A true copy ofthe[WC Minutes of March 12, 1915, was filed with this Court in Martinez, supra, Case No. 8121552, Appellants’ Appendix (hereafter, “Martinez App.”) at 563-564. *A true copy of the IWC Minutes of April 10, 1915, was filed with this Court in Martinez App., at 565-566. "A true copy wasfiled with this Court in Martinez App., at 682. 13 May 29, 1915 (“The chairman announcedthat the purpose ofthe meeting was to confer with Mrs. Florence Kelly of the National Consumers’ League”, italics added.]”° During the period between California’s 1913 statutory enactment and the [WC’s 1916 promulgation of Order No. 1, more jurisdictions continued to adopt suffer or permit. Congress in 1914, regulating the hours of female workers in the District of Columbia, used the employed orpermitted to work standard ..... By 1915 at least twentystates regulated hours of labor using the “suffer or permit” scope of accountability. (Goldstein, supra, at 1039.)”" Atthe beginning of 1916, the IWC convened a wage boardto consider wages, hours and conditionsin the fruit and vegetable canning industry. [JWC Minutes, Jan. 7, 1916, pp. 1-2).] On February 14, 1916, the Board adopted IWC Order No.1, regulating wages and hoursin that industry. Order No. 1 specifically provided that Noperson,firm or corporation shall employ or suffer or permit any women or minorfo work ... [at piece rates less than specified]” ... “Shall employ or suffer or permit any womanor minorto work [at hourly rates less than specified]... shall employ or suffer or permit any woman or minorfo work ... [more than hours specified].” [IWC Minutes, February 14, 1916, pp. 1-2, see App. 577 at §1, (italics added);id., see, p. 2 at § 2, italics added; id., see, App. 577-578 at §§ 3-5, italics added.]. Simultaneously, the IWC adopted Order No. 2, mandatingthat“(n]jo person, firmor corporation shall employ or suffer or permit any womanor minor fo work ... [in health and safety conditions below specified standards]” (/d., App. 579 at § 1)” The Commission thus adopted the child-labor model language, and acknowledged its examination andreliance upon the developing legal landscape in otherstates. Asit stated in its Second Biennial Report: A true copy of the IWC Minutes ofMay 29, 1915 was filed with this Court in Martinez App., at 568. See, also, Martinez App., at 683 (at p. 17, therein, listing other visitors during the year as including, amongothers, the chair and secretary ofthe Industrial Welfare Commission of Washington, a representative of the Massachusetts Consumers’ League, and the former chief of the Women’s Division of the United States Bureau of LaborStatistics. 21This Court observedthat, as of 1919, fourteen states plus the District of Columbia and Puerto Rico had enacted minimum-wagelaws. (Martinez, supra, 49 Cal.4th, at 53.) 2A true copy of the IWC Minutes of Jan. 7, 1916, are filed with this Court in Martinez App. 569-574. A true copy of the IWC Minutes of February 14, 1916, are filed with this court in Martinez App. 576-579, see, 577 at §1; 577-578 at §§ 3-5; see also App. 579 at § 1 regarding Order No.2. 14 The commission appreciates full well the pioneer character of minimum wagelegislation in the United States, and has proceeded with great caution in its work. ... Being the largest state in the west that is attempting by legislative action to regulate industry, particularly in providinga living wage for women workers, it is imperative that any action taken here must... be indicative of what may be accomplished in more complex communities. [Martinez App. 681-682, at “Introduction”, pp. 13-14, therein.) Wage orders | and 2, were adopted in 1916 and others followed in short order. (Martinez, supra, 49 Cal.4th at 57.) With respect to the wage orderprovisionsthat ‘““employ’ means to engage, suffer or permit to work” this Court observedthat “the chosen language wasespecially apt ... because it was already in use throughout the country ....and had been recommendedfor that purpose in several model child labor laws....” Ud., 49 Cal.4th at 57-58 (italics in original).) Legislative authorization to the IWC included “the powerto define the employmentrelationship as necessary ‘to insure the receipt of the minimum wageandto prevent evasion and subterfuge’...” (Martinez, id., 49 Cal.4th at 64, citing, Cal Drive-in Restaurant Assn., supra, 22 Cal.2d, at 302.) The phrases usedin all current industry and occupation wage orders to define the terms “employ” and “employer”first appeared in the original 1916 wage orders. (Martinez, supra, 49 Cal.4th at 50.) Any suggestion that the IWC wasunfamiliar with the suffer or permitliability standard to regulate working conditions defies reason.” E. Following Initial IWC Adoption of “Suffer or Permit to Work”, the Doctrine Continued to Be Applied Consistently to Protect Employees of Independent Contractors (1) State Courts Continued to Apply “Suffer or Permit to Work” Where No Employment Relationship Existed Between the Defendant Business and the Aggrieved Person As the IWC continuedto issueits wage orders, courts in various states continued to apply “suffer or permit” statutes to individuals irrespective of whether they were employeesofthe defendants under commonlaw definitions. (Vida Lumber Co. v. Courson (Ala. 1926) 112 So. 737 (lumber companyheldliable for death of under-aged boy working for his father who was an independent contractor with the company- -existence of employmentrelationship between child and defendant immaterial under “suffer or permit”); Commonwealth v. Hong (Mass. 1927)158 N.E. 759, 759-760 (fact that minors were employed by an independent contractor not a defense to restaurant owner’s conviction of child labor violations); Nichols v. Smith’s Bakery, Inc. (Ala. 1929) 119 So. Indeed, the California Legislature in similarly regulating industrial homework, subsequently copied the IWC’s definition of “employ” as meaning “to engage, suffer or permit”. (Industrial Homework Act of 1939, Labor Code §2650, subd.(g); Stats. 1939, Ch. 809, p. 2364, § 1.) 15 638; Daly v. Swift & Co. (Mont. 1931) 300 P. 265 (defendant Swift liable for death of 12- year-old child working for an independent junk dealer, under contract to a general contractor, removing ice-making apparatus from the cellar of Swift’s meat-packing plant.) (2) “Suffer or Permit to Work” Also Continued To Be Applied to Businesses That Reasonably Knew Work WasBeing Performed For Their Benefit The IWC continued to issue wage orders during a period in which “suffer or permit” was widely understood to impose regulation wherever the ownerhad reason to know that work was being donefor his benefit. In Sheffield Farms, supra, a business engaged in the sale of home-delivered milk was convicted of violating child labor law becauseits drivers had hired minors to guard their wagons during deliveries despite a company rule that its drivers could not allow anyoneto assist them. OfNew York’s child labor statute, the intermediate court said that its purpose andeffect ... is to impose upon the owneror proprietor of a business the duty of seeing to it that the condition prohibited by the statute does not exist. He is boundat his peril so to do. The duty is an absolute one, and it remains with him whetherhe carries on the business himself... [or entrusts] the conductof it to others. (dd. (App.Div. 1917) 167 N.Y.S., at 960.) In affirming the lower court, Justice Cardozo concluded that, [The defendant] must neither create nor suffer in his business the prohibited conditions. The commandis addressed to him. Since the duty is his, he may not escapeit by delegating it to others. He breaks the command ofthe statute if he employs the child himself. He breaks it equally if the child is employed by agents to whom he haddelegated “his own powerto prevent” ..sufferance as here prohibited implies knowledge or the opportunity through reasonable diligence to acquire knowledge ... Within thatrule, the cases must be rare where prohibited work can be done within the plant, and knowledge or the consequences of knowledge avoided. (Supra, (N.Y.Ct. Appls. 1918) 225 N.Y. 25 [121 N.E., at 475-476,italics added.) Thus, under“suffer or permit to work,” the business owner becameresponsible for labor conditions within his business if he knew that work was being performedforhis benefit. Liability in Sheffield Farms was not predicated upon any common-law agencyor respondeat superior doctrine. Other state courts have continued to interpret the “suffer or permit” language in their respective state laws consistently with the historic interpretation that existed at the time California adopted that language in its Wage Orders. Thus, in 1948,the Illinois Supreme Court held that even though horse owners whohired an underage child were not employees of the defendant race-track owners,the latter had an extensive right to control the stables and therefore could have controlled the child working there. (Gorczynskiv. Nugent(Ill. 1948) 83 N.E.2d 495.) 16 [A]ppellants knew or could have knownbythe exercise of reasonablecare, or by the performanceoftheir effective duty as prescribed by the racing . board, that plaintiff was illegally employed on its premises and under such circumstances permitted or suffered plaintiff to work in violation of the statute. (Id., 499, affirming liability for minor’s injury; accord, Teel v. Gates (Okla. 1971) 482 P.2d 602; Gabin v. Skyline Cabana Club (1969) 54 N.J. 550, 553-555.) Moreover, courts began to adopt the view that customs and commonpractices in an industry not only served to impute knowledge and an opportunity for control to a business owner, but further proved that the custorn or practice benefitted the owner. (Purtell, supra, 99 N.E. 899.) (3) The IWC Continued Its Association With the Drafters of the National Model Rule The IWCcontinuedits close relationship with the early advocates of “suffer or permit”. For example, in 1924, the IWC was supported before this court in litigation seeking to enjoin IWC operations, by an amicus brief prepared by Felix Frankfurter, then advisor to the Consumers’ League (and Professor ofLaw at Harvard), and Mary Dewson, Research Secretary of the National Consumers’ League.” (Helen Gainer v. A.B.C. Dohrman, Katherine Philips Edson, et al., S.F. No. 10,990, BRIEF ON BEHALF OF AMICI CURIAE SUPPORTING RESPONDENTS’ CONTENTION,June 9, 1924.)”° (4) California Has Enforced the [WC’s “Suffer or Permit to Work” Standard Outside the Common-Law Employment Relationship The Executive Branch, charged with enforcing wage orders, has acted upon the understanding that the [WCpossesses authority to promulgate remedies and Women continued to be the watchdogs for minimum wage. The amici represented by Frankfurter and Dewson included: The California Federation of Women’s Clubs; The California League of Women Voters; United Garment Workers of America, Local No. 125 of Los Angeles; Waitress and Cafeteria Workers Union, Local No.63, Los Angeles; The Women’s Christian Temperance Union ofNorthern California; and The Women’s Christian Temperance Union of Southern California. The brief is on file at the Robert Crown Law Library, Stanford Law School, Stanford University. *The challenge to California’s law arose as a result of the U.S. Supreme Court’s 1923 decision in Adkins v. Children’s Hospital, 261 U.S. 525 [43 S.Ct. 394], holding the District of Columbia’s minimum wage law to be unconstitutional. This Court dismissed the Gainer case without decision uponthe plaintiffs petition for dismissal alleging that she had been dupedinto bringing the suit. [[WC FIFTHREPORTFOR THE BIENNIAL PERIODSJuly I, 1922 to June 30, 1924 and July 1, 1924 to June 30, 1926, at p. 18. (A true copy of the IWC FIFTH REPORTisfiled with the Court in Martinez App., supra, at 1371.).] 17 corresponding liabilities more expansively than those providedbystatutes, subject to explicit legislative overrule. Indeed, California’s enforcement policy has been to apply the IWC suffer or permit to work employer definition outside the common-law employmentrelationships. (8 Ops.Cal.Att.Gen. No. 46-96 (Aug. 1946), pp. 59-60, concluding that Order 10's definition of “employ”as “engage, suffer, or permit to work” makesskating rinks liable as “employers” required to pay minimum wage to minor boys who workedat rinks for tips helping patrons buckle their skates although,“the boys do not report to management... their hours are not controlled by management... managementkeeps no recordsofthese skate boys... [but i]t is obvious that underthe facts stated the proprietor of the skating rink at least suffers or permits the minor child to work at the skating rink.”’) F. “Suffer or Permit to Work”Is Subject to Reasonable Knowledge (1) Liability Under “Suffer or Permit to Work” Extends to Those WhoReasonably Should Knowof the Violation in Services Performed For Their Benefit From its earliest application to labor-standards enforcement, the “suffer or permit” standardof liability has been recognized as imposing a “reasonable-care” duty. In 1912, the Illinois Supreme Court in affirming the liability for personal injuries suffered by a minorat a coal wharf, construed “permit or suffer to work”: while the statute does not require employers to police their premises in order to prevent chance violations ofthe act, they owe the duty of using reasonable care to see that boys under the forbidden age are not suffered or permitted to work there contrary to the statute. (Purtell,1. 1912) supra, 256 Ill., at 117, quoted andfollowed, Gorczynski (Ill. 1949), supra, 83 N.E.2d, at 499.) Six years later, Justice Cardozo, writing for the New York Court of Appeals, affirmedthe liability of a dairy companyfor child labor law violations occasionedbyits milk-delivery wagon drivers hiring children to watch the wagons despite companypolicy forbidding the practice. The statute prohibited suffering or permitting the employment. The employer... is chargeable with the sufferance ofillegal conditions by the delegates of his power. ... Not every casual service rendered by a child at the instance of a servantis “suffered” by the master. If a traveling salesman employed by a mercantile establishment in New York gives a dime to a boy of 13 whohascarried his sample case in Buffalo the absent employer is not brought within the grip ofthe statute. Sufferance as here prohibited implies knowledge or the opportunity through reasonable diligence to acquire knowledge ...Whatever reasonable supervision by oneself or one’s agents would discover and prevent,that, if continued, will be taken as suffered... (Sheffield Farms, supra, 121 N.E., at 476.) Referring to the company’s policy prohibiting the drivers from engaging the children, the court continued, 18 ... [T]he defendant’s duty did not end with the mere promulgation of a rule * * * * There was some duty of enforcement. The defendant was not blind to the fact that the rule was often broken. Word had often cometoit before that someofits drivers were employing boysto help them ...The inference is permissible that there was no adequate system either of repression or of detection. (Id., at 475.) Thirty-seven years after its Purtell decision, the Illinois Supreme Court, applying “suffer or permit to work”, again, concluded that the defendant race-track owner “knew or could have knownbythe exercise of reasonable care” that horse owners who boarded and raced horsesat the track were hiring under-age children to cool downhorses. (Gorczynski, supra, 83 N.E.2d, at 499.) Custom givesrise to an inference that the principal knowsor could knowofthe violations. The Purtell court found that “for many years there has been a custom, which must have been well knownto those in charge of ... [the company’s] yard,forthe... [workers] to employ a boy as a water carrier.” (Ud, 256 Ill., at 114.) Rejecting the company’s argumentthat the workers could have gone to the water hydrant themselves and therefore the company had nonecessity of hiring a water-boy, the court observed, [i]t was therefore to the pecuniary interest of ... [the company] that a boy should be employed by someoneto bring water to the men. The existence for years of such a custom of furnishing water is sufficient evidence that the method was considered byall the parties a reasonable and economical one. (Id., at 115.) (2) However, Businesses Within the Reach of “Reason” Cannot Contract Away Their Potential Liability While the reach or scope of the duty is within the confines of “reason,” the extent to which the responsibility may be cast off or avoid is subject to a different consideration. (Sheffield Farms, supra, 121 N.E., at 475-476.) The business within the reach of “reasonable care” cannot escape liability by contracting it away. The duty becomes as absolute for the business as for the entity or person to whom it may have delegated responsibility for hiring the workers or having the service performed. As Justice Cardozo continued in Sheffield Farms, ... [The employer] must neither create nor suffer in his business the prohibited conditions. The commandis addressed to him. Since the duty is his, he may not escapeit by delegating it to others. * * * He breaks the commandofthe statute if he employs the child himself. He breaksit equally if the child is employed by agents to whom he hasdelegated “his own powerto prevent”. * * * What is true of employment, mustbe true of the sufferance of employment. * * * The personal duty rests on the employer to inquire into the conditions prevailing in his business. He does not rid himself of that duty because the extent of the business may preclude his personal supervision, and compel reliance on subordinates. He must 19 then standor fall with those whom heselects to act for him...It is not an instance of respondeat superior. It is the case of the non-performanceof a nondelegable duty. (Id., at 476.) Two years later, Judge Hand writing for the United States Court ofAppeals for the SecondCircuit, similarly concluded that the remedial purposes of wage statutes reflected a societal goal to preclude a principal’s ability to contract awayliability for wages. Suchstatutes are partial; they upset the freedom of contract, and for ulterior purposesput the two contesting sides at unequal advantage; they should be construed... with some imagination of the purposes which lie behind them. (Lehigh Valley Coal, supra, 218 F., at 553.) In considering the question of whether workers were independent contractors under the common-law test, as denominated in their service agreements, this Court has addressed the consequencesofprivate-party contracts that displaced employeeprotections: The growers suggest that by signing the printed agreementafterfull explanations, the sharefarmers expressly agree they are not employees and conspicuously accept the attendant risks and benefits. However, the protections conferred by the Act have a public purpose beyondthe private interests of the workers themselves. Among otherthings, the statute represents society’s recognitionthat if the financial risk ofjob injuriesis not placed upon the businesses which produce them,it may fall upon the public treasury...Of course, a worker’s express or implied agreement to forego coverage as an independent contractoris “significant.” * * * * However, where compelling indicia of employment are otherwise present, we maynotlightly assumean individual waiverofthe protections derived from that status. Moreover, there is no indication that Borello offers its cucumber harvesters any real choice of terms. (Borello, supra, 48 Cal.3d, at 359.) Il. THE IWC’S INTENT IN PROMULGATINGITS ORDERS INCORPORATING “SUFFER OR PERMIT TO WORK” CONTROLS PRESENT APPLICATION OF THE ORDERS This Court has emphasized that extraordinary judicial deference must be given to the IWC’sauthority and its wage orders, both in upholding their validity and in enforcing their specific terms. (Martinez, supra, at 60-61.) Consistently with these deferential principles of review, we have repeatedly enforced definitional provisions the [WC has deemed necessary, in the exercise of its statutory and constitutional authority * * * to make its wage orders effective, to ensure that wagesare actually received, and to prevent evasion and subterfuge. 20 (Ud. at 61-62, boldface added.) With specific reference to the IWC definition of “employ” — “to engage, suffer, or permit to work” adopted by the Commission in 1916, this Court has pronounced, Wesee no reasonto refrain from giving the [WC’s definition of “employ” its historical meaning. That meaning waswell established when the IWC first used the phrase “‘suffer, or permit” to define employment and no reason exists to believe the [WC intended another. Furthermore, the historical meaning continues to be highly relevant today... (Martinez, id., at 69.) Amici have already demonstrated that the promulgating body’s intent should be gauged by the meaning of the wordsand the historic circumstancesat the time of adoption. Other states that adopted early “suffer or permit to work”statutes have continued to construe them in accord with the historic meaning ofthe test. (Gorczynski, supra, 83 N.E.2d 495; Teel v. Gates, supra, 482 P.2d 602 (continuing to apply the Oklahomacourt’s 1913 analysis of “suffer or permit articulated in Curtis v. Gartside, supra, ante; Swift v. Wimberly (1963)) 51 Tenn.App. 532 [370 S.W.2d 500]; Smith v. Uffelman (Tenn. 1974) 509 S.W.2d 229. CONCLUSION Amici have demonstrated that replacement of California’s longstanding “suffer or permit” standard with the New Jersey Supreme Court’s “ABC”test contradicts the plain language of the wage orders’ “suffer or permit to work”definition of “employ” and equally contradicts both the [WC’s intent in promulgating the wage orders and the California Legislature’s intent in the Act creating the [WC. The “suffer or permit” standard must be construed in a mannerthat is consistent with its historical scope and meaning, and must at a minimum encompassindividuals to whom a business owner owes a duty of reasonable care based on its knowledge of, and acquiescencein, the circumstances under which that workeris performing services for its benefit. CF. CaliforniaFH Legal Assistance Foundation, Inc. (CRLAF) Cynthia L. Rice, Counsel for Amicus Curiae, CRLAF William G. Hoerger, Of Counsel for Amicus Curiae National Employment Law Project (NELP) Anthony Mischel, Counsel for Amicus Curiae, NELP Los Angeles Alliance for a New Economy (LAANE) Jean Choi, Counsel for Amicus Curiae, LAANE 21 PROOF OF SERVICE I, Claudia Bogusz, declare as follows: 1 am employed with the law offices of CALIFORNIA RURAL LEGAL ASSISTANCE FOUNDATION, whose address is 2210 K Street, Suite 201, Sacramento, California 95816. I am over the age of eighteen years and I am nota party to this action. On January 17, 2018, I served the following documents: Dynamex Operations West, Inc. vs. Superior Court, No, 8222732, SECOND SUPPLEMENTAL LETTERBRIEFonthe party(ies) listed below, addressed as follows: SEE ATTACHEDSERVICE LIST By facsimile machine (FAX)by transmitting a true copy thereof via an electronic facsimile machineat the fax number(s) listed above. — X_ By Golden State overnight delivery service by placing a true copy thereof in a Golden State overnight sealed envelope to the addressee(s) listed herein and placing the envelope in the firm’s daily overnight delivery processing center for pick up by a Golden State overnight agent. Byfirst class mail by placing a true copy thereof in a sealed envelope with postage thereon fully prepaid to the addressee(s) listed herein and placing the envelopein the firm’s daily mail processing center for mailing in the United State mail at Sacramento, California. ___.___ By personalservice by delivering a true copy thereof to the addressee(s) listed herein at the location listed herein. I declare underpenalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on January 17, 2018 at Sacramento, California. Claudia Bogusz Dynamex Operations West, Inc. : Petitioner Robert Gordon Hulteng Littler Mendelson PC 333 Bush Street, 34th Floor San Francisco, CA 94104 IDamon Myers Ott Littler Mendelson 333 Bush Street, 34th Floor san Francisco, CA 94104 Ellen Marie Bronchetti IDLA Piper LLP 555 Mission Street, Suite 2400 San Francisco, CA 94105 Philip Andrew Simpkins Littler Mendelson PC 650 California Street, 20th Floor San Francisco, CA 94108 Superior Court of Los Angeles County : Respondent Frederick Bennett Superior Court of Los Angeles County 111 North Hill Street, Room 546 Los Angeles, CA 90012 Charles Lee : Real Party in Interest Kevin Francis Ruf Glancy Binkow and Goldberg LLP 1925 Century Park East, Ste. 2100 Los Angeles, CA 90067 Alan Mark Pope Pope, Berger, Williams & Reynolds, LLP 401 B Street, Suite 2000 San Diego, CA 92101 Jon R. Williams Boudreau Williams LLP 666 State Street San Diego, CA 92103 Pedro Chevez : Real Party in Interest Kevin Francis Ruf Glancy Binkow and Goldberg LLP 1925 Century Park East, Ste 2100 Los Angeles, CA 90067 [Alan Mark Pope Pope Berger and Williams LLP 401 B Street, Suite 2000 San Diego, CA 92101 Jon R. Williams Boudreau Williams LLP 666 State Street San Diego, CA 92103 Hon. Michael L. Stern : Non-Title Respondent Los Angeles Superior 111 North Hill Street, Dept. 62 Los Angeles, CA 90012 (Chamber of Commerce of the United States of America : Amicus curiae, California Chamber of Commerce: Amicus curiae John A. Taylor Horvitz and Levy LLP 15760 Ventura Boulevard, 18th Floor Encino, CA 91436 La Raza Centro Legal : Amicus curiae [Legal Aid Society-Employment Law Center : Amicus curiae Impact Fund : Amicus curiae Alexander Community Law Center : Amicus curiae 'UCLA Center for Labor Research : Amicus curiae Women's Employment Rights Clinic : Amicus curiae Worksafe : Amicus curiae Michael Rubin Altshuler Berzon, LLP 177 Post Street, Suite 300 San Francisco, CA 94108 (Anthony Mischel National Employment Law Project 405 14th Street, Suite 401 Oakland, CA 94612 Jean Hyung Choi ILos Angeles Alliance for a New Economy 464 Lucas Avenue,Suite 202 os Angeles, CA 90017 California Employment Lawyers Association : Amicus curiae onique Olivier Duckworth Peters Lebowitz Olivier ILLP 100 Bush Street, Suite 1800 San Francisco, CA 94104 United Food and Commercial Workers International Union : Amicus curiae Service Employees International [Union : Amicus curiae International Brotherhood of Teamsters : Amicus curiae ichael RubinAltshuler Berzon LLP177 Post Street, Suite 300San Francisco, CA 94108 3 Asian Law Caucus : Amicus curiae Impact Fund : Amicus curiae National Employment Law Project California Employment Law Council : Amicus curiae Andrew Ralston Livingston Orrick Herrington and Sutcliffe 405 Howard Street San Francisco, CA 94105 Lauri Ann Damrell Orrick Herrington and Sutcliffe 400 Capitol Mall, Suite 3000 Sacramento, CA 95814 Employers Group : Amicuscuriae Andrew Ralston Livingston Orrick Herrington and Sutcliffe 405 Howard Street San Francisco, CA 94105 Lauri Ann Damrell Orrick Herrington and Sutcliffe 400 Capitol Mall, Suite 3000 Sacramento, CA 95814 Division of Labor Standards Enforcement : Amicus curiae David M.Balter Division of Labor Standards Enforcement 455 Golden Gate Avenue, 9th Floor San Francisco, CA 94102 Susan A. Dovi Division of Labor Standards Enforcement 1515 Clay Street, Suite 801 Oakland, CA 94612 Rosa Erandi ZamoraCalifornia Rural Legal AssistanceFoundation2210 Street, Suite 201 Sacramento, CA 95816