Michael Rubin
Workers' Rights · Class Actions · Appellate Litigation
The Hiring Entity Must Prove
Until 2004 Dynamex, a same-day package and document delivery company with business centers across California, classified its drivers as employees. That year it converted all of them to independent contractors, a change its management said would save money. The drivers kept driving Dynamex routes, were generally expected to wear Dynamex shirts and badges, and now supplied their own vehicles and paid their own expenses, taxes, and workers’ compensation insurance. Charles Lee sued in April 2005. On May 11, 2011, a Los Angeles judge certified a class of drivers, and the question of what standard decides whether a worker is an employee under California’s wage orders went up to the state Supreme Court.
Michael Rubin represented the Service Employees International Union, the United Food and Commercial Workers, and the International Brotherhood of Teamsters as amici curiae and argued for them when the court heard the case in February 2018. On April 30, 2018, in Dynamex Operations West, Inc. v. Superior Court, the court unanimously adopted the ABC test. A hiring entity that wants to treat a worker as an independent contractor under a wage order must establish all three of its conditions: that the worker is free from the entity’s control and direction in performing the work, under the contract and in fact; that the work is outside the usual course of the entity’s business; and that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature. The burden sits with the company, which holds the facts about its own control, its own business, and the worker’s enterprise, and if it cannot establish any one of the three the worker is an employee for the wage order’s purposes, whatever the contract calls him. The court affirmed the class certification, and in 2019 the Legislature wrote the test into statute.
Altshuler Berzon
Rubin graduated from Brandeis University and Georgetown University Law Center and 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 is a partner at Altshuler Berzon in San Francisco, where his practice runs to appeals, class actions, and worker, civil-rights, consumer, and constitutional cases. He has argued in the United States Supreme Court and the supreme courts of California, Alaska, Indiana, and Nevada, has testified before committees of the Senate and the House of Representatives on labor and employment questions, and lectures on employment law at Stanford Law School and Berkeley Law.
Pay Now
In the second year of the pandemic, California’s Employment Development Department was holding the benefits of people who had already been receiving unemployment payments for at least a week whenever a question arose about their continued eligibility, a practice the agency called conditional pay. At the end of June 2021 the department’s own count showed about 120,000 people in continued-claims status who had waited more than twenty-one days. Rubin and Amanda Lynch represented the Center for Workers’ Rights, a Sacramento organization, in a class action in Alameda County Superior Court, and in July 2021 the department settled: it would keep paying while it investigated, pay claimants for the weeks it had withheld, and waive repayment for anyone later found ineligible who showed hardship and had not caused the overpayment or committed fraud. The first checks went out on July 23, 2021. The settlement required prompt payment to some 300,000 claimants, and Rubin estimated that between 300,000 and 600,000 people had fallen into the conditional-pay category since the pandemic began.
Four Hundred Dollars of DoorDash
Jennifer Yick, a San Francisco property manager, was collecting unemployment on the Bank of America prepaid debit card through which the state had paid benefits since 2010. In early December 2020 more than $400 left her card in large out-of-state DoorDash orders at a cake shop and a barbecue restaurant. She had never used DoorDash and had received no fraud alert, and when she called the bank to report it, she said, its customer service hung up on her again and again. On January 15, 2021, she became the lead plaintiff in a class action in the Northern District of California. By March the court had consolidated nine such suits, and Altshuler Berzon and Cotchett, Pitre & McCarthy were appointed to lead them, Rubin for Altshuler Berzon with Stacey Leyton and Connie Chan.
The cases turned on what the bank did after September 2020, when it began running cardholders’ fraud reports through an automated Claim Fraud Filter. On the filter’s say-so the bank denied claims of unauthorized transactions, clawed back credits it had already paid, and froze accounts, and cardholders who called its claims line in the fall of 2020 were left on hold by a center the plaintiffs said the bank had understaffed. At the hearing on the plaintiffs’ motion, recipients testified to losing homes, going without medication, and rationing their children’s food. On June 1, 2021, Judge Vince Chhabria entered a preliminary injunction: the bank could no longer freeze an account or deny a claim on the basis of the filter; it had to reopen the claims it had closed that way, investigate before denying, explain denials in writing, and give provisional credit on any claim unresolved after ten business days; it had to open a toll-free line, around the clock, where cardholders could verify their identity and contest a blocked account, and staff its claims center so that calls were answered within five minutes nine times out of ten.
More Than 100,000 Californians
The injunction governed the card program until June 1, 2024, when the state and the bank ended their contract and the court dissolved it. The consolidated cases moved to the Southern District of California as In re Bank of America California Unemployment Benefits Litigation, before Judge Gonzalo P. Curiel. On July 14, 2022, the bank entered consent orders with the Consumer Financial Protection Bureau and the Office of the Comptroller of the Currency over its handling of the cards and paid about $225 million in penalties. On June 24, 2025, in a ninety-eight-page order, Judge Curiel certified five classes, for claim denials, rescinded credits, account freezes, customer service, and cards issued without security chips, covering about 109,000 Californians. On August 18, 2026, in a 105-page order, he denied the bank’s motion for summary judgment in all material respects, sending to trial the claims under the Electronic Fund Transfer Act and the California Consumer Privacy Act and for negligence, breach of fiduciary duty, and breach of the implied covenant of good faith, along with the class’s demands for treble and punitive damages; the record, he wrote, raised genuine issues whether the bank had acted with malice or oppression, and its automatic denials were willful and exhibited a conscious disregard of cardholders’ access to their benefits. The claims of more than 100,000 Californians, the first of them filed in Jennifer Yick’s name, are going to trial.
