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The Ninth Circuit also decided last year that an independent-contractor (service vendor) agreement between a business and a worker in California, containing independent contractor language and an out-of-state (Texas) choice of law clause, was insufficient to make non-employee contractor status, when the substance-over-form analysis would find employee status under California law.  Accordingly, summary judgment for the employer was reversed on a worker’s claims for overtime, break pay and related compensation.  The court disregarded the choice-of-law clause, essentially on the basis that Labor Code wage claims are non-waivable statutory entitlements which must be determined for California workers under California law.  (Narayan v. Eagle Freight Systems Inc., 9th Cir. No. 07-16487, July 13, 2010).  Presumably the contractor analysis and result might be considerably different if, among other things, the employer had contracted with a legal entity which itself employed the workers, rather than with the individual workers themselves.

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