Walmart properly treated photo model as contractor, court says

A Walmart sign is pictured at one of their stores in Mexico City, Mexico March 28, 2019. REUTERS/Edgard Garrido

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  • Model’s employment status under California law uncertain
  • Walmart had good-faith basis to treat her as independent contractor

(Reuters) – A US appeals court on Tuesday said it was reasonable for Walmart Inc to believe that a photo model was an independent contractor and not the company’s employee under California law, and threw out wage claims against the retail giant.

A unanimous three-judge panel of the 9th US Circuit Court of Appeals said it was not clear whether plaintiff Bijon Hill was actually Walmart’s employee, and that uncertainty gave the company a good-faith excuse to pay her as a contractor.

The panel affirmed the dismissal of Hill’s lawsuit claiming she was not paid in a timely manner for 10 photo shoots in 2016 and 2017. Hill had sought $540,000 in damages. Hill was hired by Walmart through an agency to model clothing for marketing purposes.

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“The limited and irregular nature of her work made it reasonable for Walmart to believe that Hill was not an employee, and, as a result, that she was not entitled to immediate payment at the conclusion of each photo shoot,” Circuit Judge Milan Smith wrote for the court.

Arkansas-based Walmart, which is represented by Ford Harrison, did not immediately respond to a request for comment. Nor did lawyers for Hill.

Hill worked for Walmart for a total of 15 days over a 13-month period, and in each case was paid more than 30 days after the shoots, according to court filings.

In a 2018 lawsuit, Hill claimed Walmart had violated a California law requiring that employees be paid all wages owed within 30 days of being discharged.

US District Judge Jon Tigar in Oakland last year granted summary judgment to Walmart, and the 9th Circuit on Tuesday affirmed.

Walmart controlled when photo shoots occurred and nearly every aspect of Hill’s appearance, which suggest that she was the company’s employee, the court said. But other factors including the irregularity of the shoots and her opportunity to work for other companies supported Walmart’s position that she was an independent contractor.

In ruling for Walmart, the panel also found that Hill’s proper classification was controlled by California’s “Borello test,” named for a 1989 California Supreme Court case, and not a more strict standard adopted by the state court in the 2018 case Dynamex Operations West Inc v. Superior Court.

The Dynamex test only applies to wage regulations issued by California’s Industrial Welfare Commission, and not provisions of state labor law such as the requirement that workers be paid within 30 days, Smith wrote.

The panel included Circuit Judge Danielle Forrest and 10th Circuit Judge Paul Kelly, who sat by designation.

The case is Hill v. Walmart Inc, 9th US Circuit Court of Appeals, No. 21-15180.

For Hill: Jordanna Thigpen of Thigpen Legal

For Walmart: Timothy Reed of Ford Harrison

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Daniel Wiessner

Thomson Reuters

Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at daniel.wiessner@thomsonreuters.com.

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