NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 2 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JEREMY LASATER, No. 17-56863

Plaintiff-Appellee, D.C. No. 2:16-cv-01373-SVW-AS v.

DIRECTV, LLC, MEMORANDUM*

Defendant-Appellant.

DAVID VARAS, No. 17-56872

Plaintiff-Appellee, D.C. No. 2:16-cv-01395-SVW-AS v.

DIRECTV, LLC,

Defendant-Appellant.

HENRY TRUJEQUE, No. 17-56873

Plaintiff-Appellee, D.C. No. 2:16-cv-01477-SVW-AS v.

DIRECTV, LLC,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Defendant-Appellant.

PAUL GUZIK, No. 17-56874

Plaintiff-Appellee, D.C. No. 2:16-cv-01967-SVW-AS v.

DIRECTV, LLC,

Defendant-Appellant.

MENDAMAR LKHAGVADORJ, No. 17-56875

Plaintiff-Appellee, D.C. No. 2:16-cv-01502-SVW-AS v.

DIRECTV, LLC,

Defendant-Appellant.

JAMIE NAULT, No. 17-56898

Plaintiff-Appellee, D.C. No. 2:16-cv-05721-SVW-AS v.

DIRECTV, LLC,

Defendant-Appellant.

ARMANDO SOLIS JUAREZ, No. 17-56899

Plaintiff-Appellee, D.C. No.

2 5:16-cv-00400-SVW-AS v.

DIRECTV, LLC,

Defendant-Appellant.

JEFFREY KIDD, No. 17-56900

Plaintiff-Appellee, D.C. No. 2:16-cv-01506-SVW-AS v.

DIRECTV, LLC,

Defendant-Appellant.

JEREMY LASATER, No. 17-56936

Plaintiff-Appellant, D.C. No. 2:16-cv-01373-SVW-AS v.

DIRECTV, LLC,

Defendant-Appellee.

DAVID VARAS, No. 17-56938

Plaintiff-Appellant, D.C. No. 2:16-cv-01395-SVW-AS v.

DIRECTV, LLC,

Defendant-Appellee.

3 HENRY TRUJEQUE, No. 17-56939

Plaintiff-Appellant, D.C. No. 2:16-cv-01477-SVW-AS v.

DIRECTV, LLC,

Defendant-Appellee.

PAUL GUZIK, No. 17-56940

Plaintiff-Appellant, D.C. No. 2:16-cv-01967-SVW-AS v.

DIRECTV, LLC,

Defendant-Appellee.

MENDAMAR LKHAGVADORJ, No. 17-56941

Plaintiff-Appellant, D.C. No. 2:16-cv-01502-SVW-AS v.

DIRECTV, LLC,

Defendant-Appellee.

JAMIE NAULT, No. 17-56942

Plaintiff-Appellant, D.C. No. 2:16-cv-05721-SVW-AS v.

4

DIRECTV, LLC,

Defendant-Appellee.

ARMANDO SOLIS JUAREZ, No. 17-56943

Plaintiff-Appellant, D.C. No. 5:16-cv-00400-SVW-AS v.

DIRECTV, LLC,

Defendant-Appellee.

JEFFREY KIDD, No. 17-56944

Plaintiff-Appellant, D.C. No. 2:16-cv-01506-SVW-AS v.

DIRECTV, LLC,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Stephen V. Wilson, District Judge, Presiding

Argued and Submitted May 16, 2019 Pasadena, California

Before: LIPEZ,** WARDLAW, and HURWITZ, Circuit Judges.

** The Honorable Kermit V. Lipez, United States Circuit Judge for the First Circuit, sitting by designation.

5 The plaintiffs in these consolidated cases are technicians who install DirecTV

satellite systems. Although the technicians are paid by third parties who contract

with DirectTV for the installations, they claim that they are in reality employees of

DirectTV and are owed wages under the federal Fair Labor Standards Act (“FLSA”),

29 U.S.C. §§ 201–19, and various portions of the California Labor Code. In an order

granting partial summary judgment to the plaintiffs, the district court held that they

were DirecTV employees under both state and federal law. The parties then

stipulated to entry of final judgments (including damage awards), preserving their

right to challenge prejudgment orders. We have jurisdiction of the timely appeals

filed by all parties under 28 U.S.C. § 1291. We vacate the district court’s judgment

and remand for further proceedings.

1. The district court erred by concluding that the plaintiff technicians were

employees of DirecTV as a matter of law. A reasonable jury could find that they

were independent contractors or employees of only the third parties for purposes of

the FLSA. Taken in the light most favorable to DirecTV, the evidence shows that

the technicians retained substantial control over the performance of work orders. See

Real v. Driscoll Strawberry Assocs., 603 F.2d 748, 754 (9th Cir. 1979) (listing useful

factors for distinguishing employees from independent contractors, including “the

degree of the alleged employer’s right to control the manner in which the work is to

be performed”). DirecTV does not control the technicians’ compensation or decide

6 whether they are hired or fired. See Moreau v. Air France, 356 F.3d 942, 950 (9th

Cir. 2004) (holding that Air France was not a joint employer in part because “it did

not determine the rate or method of pay” and “lacked the ability to hire or fire”).

Although the technicians provided evidence of DirecTV’s influence over their

working conditions and ability to affect the third parties’ employment decisions, the

facts give rise to competing inferences on the issue of employment. See Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“Credibility determinations, the

weighing of the evidence, and the drawing of legitimate inferences from the facts

are jury functions . . . .”).

2. After the district court’s judgment was entered, the California Supreme

Court adopted a new test for distinguishing employees from independent contractors

under California wage orders. Dynamex Operations W., Inc. v. Superior Court, 416

P.3d 1, 35 (Cal. 2018). We recently held that the Dynamex test applies retroactively.

See Vazquez v. Jan-Pro Franchising Int’l, Inc., 923 F.3d 575, 586–90 (9th Cir.

2019). Because the district court did not have the opportunity to apply the Dynamex

test, we vacate the summary judgment on the state law claims so that it may do so in

the first instance. See id. at 593–94. We also leave it to the district court to determine

in the first instance whether Dynamex applies in the joint employment context or to

7 claims not arising under a wage order.1

VACATED and REMANDED.2

1 The plaintiffs’ cross-appeals only challenge the district court’s finding that any FLSA violations were not willful. Because we remand for further proceedings on the FLSA claims, we do not address the merits of those appeals. 2 The motion by the California Chamber of Commerce for leave to file an amicus brief in appeal No. 17-56863, Dkt. 73, is granted.

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