Michael Rubin

Three letters for a working relationship

Dynamex began with delivery drivers who said the company had reclassified them as independent contractors even though they performed the work at the center of its business. The California Supreme Court faced a threshold question before any wage claim could be resolved: what test should govern employee status under the state wage orders, and who should bear the burden of applying it?

Michael Rubin did not represent the drivers themselves. He argued for union amici—the Service Employees International Union, United Food and Commercial Workers, and International Brotherhood of Teamsters—whose brief urged a rule attentive to statutory purpose and the practical realities of work. His contribution was an appellate argument about the governing standard rather than trial representation of the named plaintiffs.

The unanimous court adopted what became known as the ABC test. A hiring entity seeking to treat a worker as an independent contractor must establish three conditions: freedom from its control, work outside the usual course of its business, and an independently established trade or business of the same nature. Failure on any one part supports employee status for purposes of the wage order.

Part B gave the test much of its force. A bakery can hire an outside plumber without turning plumbing into its usual business; a delivery company faces a different question when drivers perform its deliveries. By locating status in the relationship between the work and the enterprise, the court limited a company’s ability to make statutory coverage depend on the label written into a contract.

The opinion upheld use of the standard in the class-certification setting and returned the case to the lower court for further proceedings. It did not decide every driver’s ultimate damages or convert all independent contractors into employees. Its importance lay in the allocation of proof: the business, rather than each worker, had to establish the conditions for exclusion from wage-order protection.

Dynamex placed the classification burden on the hiring entity and supplied a class-wide standard for wage-order coverage. The rule did not guarantee recovery; it determined how employee status could be tested before the merits.

When the payment system became the dispute

During the pandemic, California unemployment benefits were distributed in part through Bank of America prepaid debit cards. Claimants alleged that the bank’s fraud controls froze accounts or denied access without adequate investigation, while cards without chips and an overwhelmed call system exposed people to theft and long delays. Bank of America denied wrongdoing and maintained that its fraud measures were lawful and reasonable.

Altshuler Berzon served as interim lead co-counsel with Cotchett, Pitre & McCarthy and other plaintiffs’ lawyers. Rubin worked on the matter with Stacey Leyton, Connie Chan, Matthew Murray, James Baltzer, and the broader team. The litigation concerned the unauthorized transactions and the process a benefits contractor owed when fraud screening interrupted access to subsistence payments.

In 2021, the federal district court entered a preliminary injunction. Among other measures, it barred use of a challenged automated Claim Fraud Filter, required reconsideration of specified denials, imposed identity-authentication steps, expanded telephone assistance, and required provisional credit when an investigation remained incomplete after ten business days. The order converted broad due-process concerns into operational deadlines and prohibited practices.

The preliminary injunction provided interim protections based on the court’s assessment of likely success and irreparable harm while litigation continued. The bank retained its defenses, and the plaintiffs still had to prove the certified claims.

The injunction was dissolved on June 1, 2024, after Bank of America’s contract with California’s Employment Development Department ended. The case did not end with it. The court certified five classes, and the settlement website states that liability and damages remain unresolved as litigation continues. Current status therefore differs from the emergency phase that produced the original order.

The emergency order changed the payment system while the merits remained contested, but its duration was tied to the contract and conditions that justified it. Rubin’s work helped articulate rules for a live payment mechanism; the remaining case must determine what legal consequences follow from how that mechanism operated.

A clock attached to benefits

A separate California unemployment matter focused on delay inside the state agency itself. Rubin and Amanda Lynch, working with the Center for Workers’ Rights, negotiated a settlement concerning a backlog that had left hundreds of thousands of claims awaiting eligibility determinations. For a claimant without wages, procedural time is part of the substance of the benefit: payment months later cannot meet the same need.

The settlement required the Employment Development Department to make prompt payments to qualifying claimants while it continued to investigate eligibility, subject to the governing terms. The public account estimated that roughly 300,000 people would receive delayed benefits. Qualifying payments could proceed while the agency continued its eligibility review.

The Bank of America matter challenged controls used by a private financial contractor; the EDD matter addressed agency delay. The resulting orders governed authentication, investigation periods, telephone access, provisional credit, and prompt payment while claims remained under review.

Class leadership, co-counsel, legal-services organizations, and firm colleagues divided the work. The orders and agreement assigned duties to administrators and contractors that claimants could invoke and courts could supervise.

The rule and the route to enforce it

Rubin is a partner at Altshuler Berzon in San Francisco. His practice centers on appeals, class actions, and public-interest litigation involving workers, civil rights, consumers, and constitutional questions. He has argued in the United States Supreme Court and several state high courts and has testified before Congress. Those forums place unusual weight on how a proposed rule will operate beyond one record.

His clerkships were with Justice William J. Brennan Jr., Judge James R. Browning of the Ninth Circuit, and Judge Charles B. Renfrew of the Northern District of California.

Dynamex concerns classification; the benefit cases concern access and delay. In each, enforcement depends on a workable route to the right. A wage order has limited value if a label can remove workers before the test begins. A benefit authorization has limited value if fraud screening or a backlog can suspend payment without a timely path for review.

That route also assigns the cost of uncertainty. Dynamex places the classification burden on the hiring entity. The Bank of America injunction required provisional credit when an investigation exceeded a stated period. The EDD agreement moved qualifying payments forward while eligibility review continued. The doctrines differ, but each asks which institution should carry delay or ambiguity while the underlying right is unresolved.

The records also preserve their limits. Rubin appeared for amici, not the Dynamex drivers. The Bank of America injunction was preliminary and later dissolved, while class litigation continues. The EDD agreement addressed timing rather than guaranteeing eligibility for every claimant. Exact roles and procedural posture are essential because public-interest litigation often produces law or process before it produces a final damages judgment.

Across the three matters, burdens of proof, review procedures, deadlines, and provisional remedies determined whether workers and families could obtain statutory protection while the underlying disputes continued.