Dog-Sitting App Tells 9th Circ. It Is Not an Employer, a digital platform connecting pet owners with dog sitters, asked the Ninth Circuit to uphold a California federal judge’s finding that the company did not misclassify a dog sitter as an independent contractor, arguing she controlled her own schedule, rates and declined bookings without being penalized.

Rover (A Place for Rover Inc.) told the appellate court in its answering brief that the company met all three prongs of the ABC test to determine when workers can be treated as independent contractors under California law, which focuses on an employer’s control over workers.

The ABC test was introduced by the California Supreme Court decision in 2018 in Dynamex Operations West Inc. v. the Superior Court of Los Angeles County. Under that test, a worker is considered an employee unless a business can show the worker is free from its control, performs work outside its line of business and operates as an independent entity.

In addition to their argument of passing the ABC test, Rover also made the case that because it is deemed a referral agency under the state's labor code, it should not be subject to the ABC test in the first place.

Instead, Rover argued that like all referral agencies, it is subject to the so-called Borello test. Borello is established by the state high court's 1989 ruling in S.G. Borello & Sons Inc. v. Department of Industrial Relations and weighs 11 factors to analyze an employer's control over workers.

In the brief Rover claimed, "Because pet care providers on the Rover app set their own prices, availability, and scope of services, and independently negotiate and enter into (or decline) bookings with pet owners who also use Rover's marketplace, the district court correctly held that pet care providers who use Rover's marketplace services are independent contractors, not employees."

Rover argued pet care providers like plaintiff and appellant Melanie Sportsman — who sued the company for misclassifying her as an independent contractor — are free from company control and provide services under their own name and profile, not the company's.

Sportsman provides her own tools to do her job and was engaged in a similar nature of pet care service before joining the Rover app, the brief states. Sportsman is not monitored or controlled by Rover, is paid by the pet owner and provides pet care services that are considered a specific skill, the company added.

Rover therefore claims that, under the Borello test, Rover is a referral agency and Sportsman is a contractor.

Rover's brief follows an opening appeal brief filed last December by dog-walker and sitter Sportsman, who urged the circuit judges to reconsider U.S. District Judge William H. Orrick's holding that Rover is merely a marketplace linking service providers and owners, and that Sportsman is not an employee for Rover.

Sportsman joined a lawsuit filed by plaintiff Erika Miller, who sued Rover in November 2018 in San Francisco County Superior Court over misclassification. Miller voluntarily dismissed her claims and Sportsman continued as plaintiff.

Sportsman and Rover moved for summary judgment in February 2021, leading to Judge Orrick's decision in May 2021 that sided with Rover.

Sportsman told the circuit last December Rover failed to meet any of the three prongs under the ABC test. Judge Orrick erred in his decision because Rover still "exerts pressure" on providers on tasks they should perform while pet-sitting, like keeping owners updated with photos of their pets and their activities, Sportsman argued.

Furthermore, Rover deducts 20% of the customer payment for a service fee, she said. That means Rover isn't just a marketplace, it is an active purveyor of pet services and relies on people like Sportsman to make a profit, she argued.

On Thursday, Rover disagreed, arguing Judge Orrick got it right and that the company meets the Borello criteria for the same reasons it satisfies the ABC test. The company in no way directly provides the pet care services, only Sportsman does, Rover argued.

"To adopt Sportsman's position would transform virtually any marketplace — online or otherwise — into an employer merely because it provides a forum, subject to rules, for vendors to sell their wares and services and to marketplace platforms," Rover said. "This is not the law."

Rover further denied the 20% service fee it takes means it controls what the dog-sitters and walkers charge. Service providers are aware of the service fee Rover charges and are free to adjust their rates to account for that fee, it said.

"To Rover's knowledge, no court applying the ABC test has ever found an employment relationship where the worker had such unilateral and total discretion to set rates," Rover added.

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