I’m sure many of you, like me, were thinking we had seen a lot this year, then came August. A month that continues to include the challenges and complexities of COVID 19, including but not limited to protecting our staff and the public while providing the level of service that our customers demand. We endured a month with devastating wildfires in many areas of the state that impacted lives and property. The US Military because of the NDAA, Section 889, required businesses, TSP’s and NTS providers in the moving industry included, to verify that they did not use certain Chinese electronic software and hardware. The American Moving and Storage Association (AMSA) agreed to become a conference of the American Trucking Association (ATA). A challenging California Legislative year came to an end. All this happened while servicing what had become (at least for household goods movers), an actual busy season.

August also included a virtual meeting of Bureau of Household Goods and Services (BHGS) Advisory Council. This meeting, the first meeting of my second two-year term, included reports from Bureau staff, including some of the tables that are posted in this publication. Additionally, the Licensing report discussion of Household Movers Exam included an update on testing sites. For historical reference, the CPUC had 2 testing sites, San Francisco and Los Angeles. In comparison, come September, BHGS hopes to have 17 test sites in California and an additional 22 nationwide operative.

On several occasions CMSA has spoken about the potential, for those who engage permitted partners, of the Business-to-Business (B to B) language in the Labor Code, amended in AB 2257 (currently enrolled and sitting on Governor Newsom’s desk for signature). The section discussed in the CMSA Bulletin and other discussions has been recast from Section 2750.3 of the California Labor Code to Section 2776. The applicable labor code section with modifications is listed below.

THE CALIFORNIA MOVING AND STORAGE ASSOCIATION (CMSA) IS A NON-PROFIT TRADE ASSOCIATION THAT DOES NOT DISPENSE LEGAL ADVICE. ANY IDEAS, CONCEPTS, OR THEORIES THAT ARE DISCUSSED SHOULD BE REVIEWED BY YOUR OWN LEGAL COUNSEL. AB 5 IS UNSETTLED LAW AND YOUR OWN CIRCUMSTANCES MAY PLAY A ROLE IN POTENTIAL OUTCOMES.

2776.
Section 2775 and the holding in Dynamex do not apply to a bona fide business-to-business contracting relationship, as defined below, under the following conditions:
(a) If an individual acting as a sole proprietor, or a business entity formed as a partnership, limited liability company, limited liability partnership, or corporation (“business service provider”) contracts to provide services to another such business or to a public agency or quasi-public corporation (“contracting business”), the determination of employee or independent contractor status of the business services provider shall be governed by Borello, if the contracting business demonstrates that all of the following criteria are satisfied:

(1) The business service provider is free from the control and direction of the contracting business entity in connection with the performance of the work, both under the contract for the performance of the work and in fact.

(2) The business service provider is providing services directly to the contracting business rather than to customers of the contracting business. This subparagraph does not apply if the business service provider’s employees are solely performing the services under the contract under the name of the business service provider and the business service provider regularly contracts with other businesses.

(3) The contract with the business service provider is in writing and specifies the payment amount, including any applicable rate of pay, for services to be performed, as well as the due date of payment for such services.

(4) If the work is performed in a jurisdiction that requires the business service provider to have a business license or business tax registration, the business service provider has the required business license or business tax registration.

(5) The business service provider maintains a business location, which may include the business service provider’s residence, that is separate from the business or work location of the contracting business.

(6) The business service provider is customarily engaged in an independently established business of the same nature as that involved in the work performed.

(7) The business service provider can contract with other businesses to provide the same or similar services and maintain a clientele without restrictions from the hiring entity.

(8) The business service provider advertises and holds itself out to the public as available to provide the same or similar services.

(9) Consistent with the nature of the work, the business service provider provides its own tools, vehicles, and equipment to perform the services, not including any proprietary materials that may be necessary to perform the services under the contract.

(10) The business service provider can negotiate its own rates.

(11) Consistent with the nature of the work, the business service provider can set its own hours and location of work.

(12) The business service provider is not performing the type of work for which a license from the Contractors’ State License Board is required, pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code.

September 2020 - CMSA Communicator