Michael Rubin

Three Conditions for Exclusion

Delivery drivers alleged that Dynamex had reclassified them as independent contractors even though they performed work at the center of the company's business.

Rubin argued for the Service Employees International Union, United Food and Commercial Workers, and International Brotherhood of Teamsters. The amici brief addressed the purpose of the wage orders and the practical relationship between the worker and the enterprise.

Rubin's advocacy brought the three unions' accumulated experience with worker classification and workplace conditions to the question of how wage-order coverage should be tested — and the Court's answer replaced an unpredictable multi-factor inquiry with a clear, administrable standard.

The California Supreme Court unanimously adopted the ABC test. A hiring entity seeking to classify a worker as an independent contractor must establish:

A: the worker is free from the hiring entity's control and direction in performing the work.

B: the work is outside the usual course of the hiring entity's business.

C: the worker is customarily engaged in an independently established trade, occupation, or business of the same nature.

Failure on any part supports employee status for purposes of the wage order. The hiring entity — not the worker — must prove all three conditions before the worker can be treated as an independent contractor.

The allocation placed proof with the hiring entity that controls the facts about direction, its usual course of business, and whether the worker operates an independent enterprise.

Part B and the Usual Course of Business

The opinion contrasted a bakery hiring an outside plumber with a delivery company using drivers to perform its deliveries. The first relationship may involve work outside the business's usual course; the second presents the opposite question.

By locating status in the relationship between the work and the enterprise, the Court limited a company's ability to make wage-order coverage depend on the label written into a contract.

The Court upheld use of the standard at class certification and returned the case to the lower court with the classification burden assigned to the hiring entity. Rubin's amicus advocacy addressed who bears the burden, what facts matter, and how the wage-order rule applies across the proposed class. The test he championed was later codified by the California Legislature.

California Unemployment Debit Cards

During the pandemic, California distributed unemployment benefits in part through Bank of America prepaid debit cards. Claimants challenged unauthorized transactions, fraud controls that froze accounts or interrupted access, card security, and call-system delays.

Rubin helped lead the challenge to the bank's handling of fraud screening and access to benefits. The case connected due-process protections to the automated filter, identity authentication, review deadlines, telephone assistance, and provisional credit.

In 2021, the federal district court entered a preliminary injunction that barred use of the challenged automated Claim Fraud Filter, required reconsideration of specified denials, imposed identity-authentication procedures, expanded telephone assistance, and required provisional credit when an investigation remained incomplete after ten business days.

The injunction governed the payment system through the end of Bank of America's California contract on June 1, 2024 — three years during which the court's order stood between an automated filter and the benefits families depended on.

The EDD Backlog

A separate action concerned delays within California's Employment Development Department, the state agency responsible for eligibility determinations. Hundreds of thousands of claims were awaiting decisions.

For claimants without wages, the timing of payment mattered: benefits released months later could not meet the same immediate need.

Rubin and Amanda Lynch, working with the Center for Workers' Rights, negotiated a settlement requiring prompt payment to qualifying claimants while eligibility review continued under the agreement's terms.

Approximately 300,000 people were expected to receive delayed unemployment benefits through the prompt-payment process. The bank matter addressed access to distributed funds; the EDD agreement addressed delayed eligibility decisions by the state agency. Together, the two cases restored the flow of benefits at both ends of the system.

Altshuler Berzon

Rubin is a partner at Altshuler Berzon in San Francisco. His practice includes appeals, class actions, worker rights, civil rights, consumer protection, and constitutional litigation.

He has argued in the United States Supreme Court and the California, Alaska, Indiana, and Nevada Supreme Courts, has testified before committees of the United States Senate and House of Representatives on labor and employment issues, and is a fellow of the College of Labor and Employment Lawyers. He lectures regularly on employment law, including at Stanford Law School and Berkeley Law.

Rubin clerked for Justice William J. Brennan Jr., Judge James R. Browning of the Ninth Circuit, and Judge Charles B. Renfrew of the Northern District of California. He graduated from Brandeis University and Georgetown University Law Center.

His appellate work connects trial facts, governing standards, the authority of each court, and the language lower courts must apply. Those elements shape whether a classwide rule, an operational injunction, or a prompt-payment agreement can be invoked in practice — the difference between a favorable opinion and a working remedy.