Arnold v. Mutual of Omaha Ins. Co., 2011 WL 6849652 (Cal. Ct. App. 2011)

Kimbly Arnold filed a complaint against Mutual of Omaha on her behalf and on behalf of a putative class of similarly situated “licensed agents” and “sales representatives” of the company, alleging violations of the California Labor Code, including provisions governing expense reimbursement of employees and timely payment of final wages to employees who have quit their employment. Mutual argued that Arnold was an independent contractor under the common law test, and the trial court agreed, granting Mutual’s summary judgment motion. The Court of Appeal affirmed, holding that the common law test (not the test found in Labor Code § 2750) is to be used to determine if a worker is an independent contractor or an employee. The Court further held that the trial court properly applied the common law test in determining that Arnold was an independent contractor (e.g., Arnold used her own judgment in determining whom to solicit as well as the time, place and manner of the solicitation; her appointment was nonexclusive, and she in fact solicited for other insurance companies during her appointment with Mutual; her Mutual manager did not evaluate her performance or monitor or supervise her work; training was voluntary except as required by law; and agents who used Mutual’s office were required to pay a fee for the workspace and telephone service).