Opinion for the Court filed by Circuit Judge BROWN.

. Opinion dissenting in part filed by Circuit Judge GARLAND.

BROWN, Circuit Judge:

FedEx Ground Package System, Inc. (“FedEx”), a company that provides small package delivery throughout the country, seeks review of the determination of the National Labor Relations Board (“Board”) that FedEx committed an unfair labor practice by refusing to bargain with the union certified as the collective bargaining representative of its Wilmington, Massachusetts drivers. The Board cross-applies for enforcement of its order. Because the drivers are independent contractors and not employees, we grant FedEx’s petition, vacate the order, and deny the cross-application for enforcement

I.

In 1998, FedEx acquired Roadway Package Systems and changed its name to FedEx Ground Package System, Inc. The company has two operating divisions: the Ground Division and the Home Delivery Division or FedEx Home. The Ground Division delivers packages of up to 150 pounds, principally to and from business customers. FedEx Home delivers packages of up to 75 pounds, mostly to residential customers. The Wilmington terminals are part of FedEx Home, a network that operates 300 stand-alone terminals throughout the United States and shares space in an additional 200 Ground Division facilities. FedEx Home has independent contractor agreements with about 4,000 contractors nationwide with responsibility for over 5,000 routes.

In July 2006, the International Brotherhood of Teamsters, Local Union 25, filed two petitions with the NLRB seeking representation elections at the Jewel Drive and Ballardvale Street terminals in Wilmington, neither of which boasts many contractors. The Union won the elections, prevailing by a vote of 14 to 6 at Jewel Drive and 10 to 2 at Ballardvale Street, and was certified as the collective bargaining representative at both. FedEx refused to bargain with the Union. The company did not contest the vote count; instead, FedEx disputed the preliminary finding that its single-route drivers are “employees” -within the meaning of Section 2(8) of the National Labor Relations Act, 29 U.S.C. § 152(8).

The Board rejected FedEx’s Request for Review of the Regional Director’s Decision and Direction of Election on November 8, 2006. In dissent, Chairman Battista disagreed with “the refusal to permit [FedEx] to introduce system-wide evidence concerning the number of route sales and the amount of profit,” as the information would be relevant to the determination of the drivers’ “entrepreneurial interest in their position.” FedEx Home Delivery and Local 25, N.L.R.B. Case Nos. 1-RC-22034, 22035, (Nov. 8, 2006) (Battista, C., dissenting). After the election, the Board found FedEx violated Sections 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and (5), by refusing to bargain. Finding FedEx’s objection that its contractors are not employees had been raised and rejected in the representation proceedings, the Board issued its order on September 28, 2007. FedEx filed a timely petition for review and the Board filed its cross-application for enforcement. The Union intervened in support of the Board’s cross-application.

II.

To determine whether a worker should be classified as an employee or an *287independent contractor, the Board and this court apply the common-law agency test, a requirement that reflects clear congressional will. See NLRB v. United Ins. Co., 390 U.S. 254, 256, 88 S.Ct. 988, 19 L.Ed.2d 1083 (1968); see also St. Joseph News Press, 345 N.L.R.B. 474, 478 (2005) (“Supreme Court precedent ‘teaches us not only that the common law of agency is the standard to measure employee status but also that we have no authority to change it.”’) (quoting Dial-A-Mattress Operating Corp., 326 N.L.R.B. 884, 894 (1998)). While this seems simple enough, the Restatement’s non-exhaustive ten-factor test is not especially amenable to any sort of bright-line rule,1 a long-recognized rub.2 Thus, “there is no shorthand formula or magic phrase that can be applied to find the answer, but all of the incidents of the relationship must be assessed and weighed with no one factor being decisive,” United Ins. Co., 390 U.S. at 258, 88 S.Ct. 988, always bearing in mind the “legal distinction between ‘employees’ ... and ‘independent contractors’ ... is permeated at the fringes by conclusions drawn from the factual setting of the particular industrial dispute.” North Am. Van Lines, Inc. v. NLRB, 869 F.2d 596, 599 (D.C.Cir.1989) (“NAVL ”).

This potential uncertainty is particularly problematic because the line between worker and independent contractor is jurisdictional — the Board has no authority whatsoever over independent contractors. See id. at 598. Consequently, it is “one of this court’s principal functions” to “ensur[e] that the Board exercises power only within the channels intended by Congress,” especially as determining status from undisputed facts “involves no special administrative expertise that a court does not possess.” Id. We thus do not grant great or even “normal[ ]” deference to the Board’s status determinations; instead, we will only uphold the Board if at least “it can be said to have ‘made a choice between two fairly conflicting views.’ ” C.C. Eastern, Inc. v. NLRB, 60 F.3d 855, 858 (D.C.Cir.1995) (quoting NAVL, 869 F.2d at 599).

For a time, when applying this common law test, we spoke in terms of an employer’s right to exercise control, making the extent of actual supervision of the means and manner of the worker’s performance a key consideration in the totality of the circumstances assessment. Though all the common law factors were considered, the meta-question, as it were, focused on the sorts of controls employers could use without transforming a contractor into an employee. E.g., NAVL, 869 F.2d at 599 (“In applying traditional agency law principles, the NLRB and the courts have adopted a right-to-control test. The test requires an evaluation of all the circumstances, but the extent of the actual supervision exercised ... is the most important element.”). For example, “efforts to monitor, evaluate, and *288improve” a worker’s performance were deemed compatible with independent contractor status. Id. Nor would “restrictions” resulting from “government regulation” mandate a contrary conclusion. Id. “[Ejvidence of unequal bargaining power” also did not establish “control.” Id.

Gradually, however, a verbal formulation emerged that sought to identify the essential quantum of independence that separates a contractor from an employee, a process reflected in cases like C.C. Eastern and NAVL where we used words like control but struggled to articulate exactly what we meant by them. “Control,” for instance, did not mean all kinds of controls, but only certain kinds. See, e.g., C.C. Eastern, 60 F.3d at 858 (quoting NAVL, 869 F.2d at 599). Even though we were sufficiently confident in our judgment that we reversed the Board, long portions of both opinions were dedicated to explaining why some controls were more equal than others. See id. at 858-61; NAVL, 869 F.2d at 599-604. In other words, “control” was close to what we were trying to capture, but it wasn’t a perfect concurrence. It was as if the sheet music just didn’t quite match the tune.

In any event, the process that seems implicit in those cases became explicit — indeed, as explicit as words can be — in Corporate Express Delivery Systems v. NLRB, 292 F.3d 777 (D.C.Cir.2002). In that case, both this court and the Board, while retaining all of the common law factors, “shift[ed the] emphasis” away from the unwieldy control inquiry in favor of a more accurate proxy: whether the “putative independent contractors have ‘significant entrepreneurial opportunity for gain or loss.’ ” Id. at 780 (quoting Corp. Express Delivery Sys., 332 N.L.R.B. No. 144, at 6 (Dec. 19, 2000)). This subtle refinement was done at the Board’s urging in light of a comment to the Restatement that explains a “ ‘full-time cook is regarded as a servant,”’ — and not “an independent contractor” — -“.‘although it is understood that the employer will exercise no control over the cooking.’ ” Id. (quoting Restatement (Second) of Agency § 220(1) cmt. d). Thus, while all the considerations at common law remain in play, an important animating principle by which to evaluate those factors in cases where some factors cut one way and some the other is whether the position presents the opportunities and risks inherent in entrepreneurialism. Id. 3

Although using this “emphasis” does not make applying the test purely mechanical, the line drawing is easier, or at least this court and the Board in Corporate Express seem to have so hoped. See id. (“We agree with the Board’s suggestion that [entrepreneurial opportunity] better captures the distinction between an employee and an independent contractor.”). In C.C. Eastern, for instance, we decided drivers for a cartage company who owned them own tractors, signed an independent contractor agreement, “retain[ed] the rights, as independent entrepreneurs, to hire them own employees” and could “use them tractors during non-business horn’s,” and who were “paid by the job” and received no employee benefits, should be characterized as independent contractors. 60 F.3d at 858-59. We also noted the company did *289not require “specific work hours” or dress codes, nor did it subject workers to conventional employee discipline. Id. at 858. Conversely, in Corporate Express, emphasizing entrepreneurialism, we straightforwardly concluded that where the owner-operators “were not permitted to employ others to do the Company’s work or to use their own vehicles for other jobs,” they “lacked all entrepreneurial opportunity and consequently functioned as employees rather than as independent contractors.” 292 F.3d at 780-81.

This struggle to capture and articulate what is meant by abstractions like “independence” and “control” also seems to play a part in the Board’s own cases, though we readily concede the Board’s language has not been as unambiguous as this court’s binding statement in Corporate Express. For instance, in the latest but far from only statement of the principle, see St. Joseph News Press, 345 N.L.R.B. at 479; Dial-A-Mattress Operating Corp., 326 N.L.R.B. at 891; cf. Panhandle E. Pipe Line Co. v. FERC, 890 F.2d 435, 438-39 (D.C.Cir.1989) (agency action while review is pending in this court can be relevant), and a ease where the Board explicitly said it was simply following its own precedent, Arizona Republic, 349 N.L.R.B. 1040, 1040 (2007), the Board held that where carriers sign an independent contractor agreement; own, maintain, and control their own vehicles; hire full-time substitutes and control the substitutes’ terms and conditions of employment; are permitted to hold contracts on multiple routes; select the delivery sequence; and are not subject to the employer’s progressive discipline system, the evidence establishes that the carriers are independent contractors, id. at 1040-41, 1046. Importantly, the Board, noting-many drivers had “multiple routes” and could deliver newspapers for another publisher, also concluded significant entrepreneurial opportunity existed, even if most failed to make the extra effort. “[T]he fact that many carriers choose not to take advantage of this opportunity to increase their income does not mean that they do not have the entrepreneurial potential to do so.” Id. at 1045.

The record here shares many of the same characteristics of entrepreneurial potential.4 In the underlying representation decision, the Regional Director found the contractors sign a Standard Contractor Operating Agreement that specifies the contractor is not an employee of FedEx “for any purpose” and confirms the “manner and means of reaching mutual business objectives” is within the contractor’s discretion, and FedEx “may not prescribe hours of work, whether or when the contractors take breaks, what routes they follow, or other details of performance”; “contractors are not subject to reprimands or other discipline”; contractors must provide their own vehicles, although the vehicles must be compliant with government regulations and other safety requirements; and “contractors are responsible for all the costs associated with operating and maintaining their vehicles.” FedEx Home Delivery and Local 25, N.L.R.B. Case Nos. 1-RC-22034, 22035, slip op. at 10-14 (Fúst Region, Sept. 20, 2006) (“Representation Decision”). They may use the vehicles “for other commercial or personal .purposes ... so long as they remove or mask all FedEx Home logos and markings,” and, even on this limited record, some do use *290them for personal uses like moving family members, and in the past “Alan Douglas[ ] used his FedEx truck for his ‘Douglas Delivery’ delivery service, in which he delivered items such as lawn mowers for a repair company.” Id. at 14, 15. Contractors can independently incorporate, and at least two in Wilmington have done so. At least one contractor has negotiated with FedEx for higher fees. Id. at 20.5

Tellingly, contractors may contract to serve multiple routes or hire their own employees for their single routes; more than twenty-five percent of contractors have hired their own employees at some point. See Resp’ts Br. at 6. “The multiple route contractors have sole authority to hire and dismiss their drivers”; they are responsible for the “drivers’ wages” and “all expenses associated with hiring drivers, such as the cost of training, physical exams, drug screening, employment taxes, and work accident insurance.” Representation Decision, slip op. at 27.6 The drivers’ pay and benefits, as well as responsibility for fuel costs and the like, are negotiated “between the contractors and their drivers.” Id. In addition, “both multiple and single route contractors may hire drivers” as “temporary” replacements on their own routes; though they can use FedEx’s “Time Off Program” to find replacement drivers when they are ill or away, they need not use this program, and not all do. Id. at 28-29. Thus, contrary to the dissent’s depiction, Dis. Op. at 513, contractors do not need to show up at work every day (or ever, for that matter); instead, at their discretion, they can take a day, a week, a month, or more off, so long as they hire another to be there. “FedEx [also] is not involved in a contractor’s decision to hire or terminate a substitute driver, and contractors do not even have to tell FedEx [ ] they have hired a replacement driver, as long as the driver is ‘qualified.’ ” Representation Decision, slip op. at 29. “Contractors may also choose to hire helpers” without notifying FedEx at all; at least six contractors in Wilmington have done so. Id. at 29-30. This ability to hire “others to do the Company’s work” is no small thing in evaluating “entrepreneurial opportunity.” Corp. Express, 292 F.3d at 780-81; see also St. Joseph News Press, 345 N.L.R.B. at 479 (“Most importantly, the carriers can hire full-time substitutes.... ”).

*291Another aspect of the Operating Agreement is significant, and is novel under our precedent. Contractors can assign at law their contractual rights to their routes, without FedEx’s permission. The logical result is they can sell, trade, give, or even bequeath their routes, an unusual feature for an employer-employee relationship. In fact, the amount of consideration for the sale of a route is negotiated “strictly between the seller and the buyer,” with no FedEx involvement at all other than the new route owner must also be “qualified” under the Operating Agreement, Representation Decision, slip op. at 30, with “qualified” merely meaning the new owner of the route also satisfies Department of Transportation (“DOT”) regulations, see id. at 8-10. Although FedEx assigns routes without nominal charge, the record contains evidence, as the Regional Director expressly found, that at least two contractors were able to sell routes for a profit ranging from $3,000 to nearly $16,000. See id. at 30-32, 38-39.

In its argument to this court, the Board, echoed by the dissent, discounts this evidence of entrepreneurial opportunity by saying any so-called profit merely represents the value of the vehicles, which were sold along with the routes. But if a vehicle depreciates in value, it is not worth as much as it was before; that is tautological. Here, buyers paid more for a vehicle and route than just the depreciated value of the vehicle — in one instance more than $10,000 more. Therefore, as the Regional Director did, we find this value is profit. Compare Representation Decision, slip op. at 38 (“Neal’s profit on the sale of his route was only $3000 to $6000,” and “[a]f-ter deducting the value of the truck ... it appears that, at best, Ferreira paid Jung somewhere between $11,000 and $16,000 for the route.”) with Dis. Op. at 516 (suggesting no “gain at all” may have been shown). The amount of profit may be “murky,” as it may be as high as $6,000 and $16,000 or as low as $3,000 or $11,000, respectively, but the profit is real. Representation Decision, slip op. at 38. That this potential for profit exists is unsurprising: routes are geographically defined, and they likely have value dependent on those geographic specifics which some contractors can better exploit than others. For example, as people move into an area, the ability to profit from that migration varies; some contractors using more efficient methods can continue to serve the entire route, while others cannot.

It is similarly confused to conclude FedEx gives away routes for free. See Dis. Op. at 515. A contractor agrees to provide a service in return for compensation, i.e., both sides give consideration. If a contractor does not do what she says, FedEx suffers damages, just as she does if FedEx does not pay what is owed. Servicing a route is not cheap; one needs a truck (which the contractor pays for) and a driver (which the contractor also pays for, either directly or in kind). To say this is giving away a route is to say when one hires a contractor to build a house, one is just giving away a construction opportunity. All of this evidence thus supports finding these contractors to be independent.

The Regional Director, however, thought FedEx’s business model distinguishable from those where the Board had concluded the drivers were independent contractors. For example, FedEx requires: contractors to wear a recognizable uniform and conform to grooming standards; vehicles of particular color (white) and within a specific size range; and vehicles to display FedEx’s logo in a way larger than that required by DOT regulations. The company insists drivers complete a driving course (or have a year of commercial driving experience, which need not be with FedEx) and be insured, and it *292“conducts two customer service rides per year” to audit performance. FedEx provides incentive pay (as well as fuel reimbursements in limited instances) and vehicle availability allotments, and requires contractors have a vehicle and driver available for deliveries Tuesday through Saturday. Id. at 508-14. Moreover, FedEx can reconfigure routes if a contractor cannot provide adequate service, though the contractor has five days to prove otherwise, and is entitled to monetary compensation for the diminished value of the route. Id. at 512. These aspects of FedEx’s operation are distinguishable from the business models in Dial-A-Mattress, 326 N.L.R.B. 884 (contractors arranged their own training, could decline work, did not wear uniforms, could use any vehicle, and were provided no subsidies or minimum compensation) and Argix Direct, Inc., 343 N.L.R.B. 1017 (2004) (contractors could decline work, delivered to major retailers using any vehicle, and had no guaranteed income).

But those distinctions, though not irrelevant, reflect differences in the type of service the contractors are providing rather than differences in the employment relationship. In other words, the distinctions are significant but not sufficient. FedEx Home’s business model is somewhat unique. The service is delivering small packages, mostly to residential customers. Unlike some trucking companies, its drivers are not delivering goods that FedEx sells or manufacturers, nor does FedEx move freight for a limited number of large clients. Instead, it is an intermediary between a diffuse group of senders and a broadly diverse group of recipients. With this model comes certain customer demands, including safety. As the Internal Revenue Service (“IRS”) persuasively notes, and ordinary experience confirms, a uniform requirement often at least in part “is intended to ensure customer security rather than to control the [driver].” Internal Revenue Service, Employment Tax Guidelines: Classifying Certain Van Operators in the Moving Industry 23, http:// www.irs.gov/pub/irs-utl/van-ops.pdf (last visited April 3, 2009).7 And once a driver wears FedEx’s logo, FedEx has an interest in making sure her conduct reflects favorably on that logo, for instance by her being a safe and insured driver — which is required by DOT regulations in any event. See Representation Decision, slip op. at 8-9,14, 24.

We have held that constraints imposed by customer demands and government regulations do not determine the employment relationship. See C.C. Eastern, 60 F.3d at 859 (“[W]here a company’s control over an aspect of the workers’ performance is motivated by a concern for customer service, that control does not suggest an employment relationship.”); NAVL, 869 F.2d at 599 (“[E]mployer efforts to monitor, evaluate, and improve the results of ends of the worker’s performance do not make the worker an employee.”); id. (“[Restrictions upon a worker’s manner and means of performance that spring from government regulation ... do not necessarily support a conclusion of employment status” because the company “is not controlling the driver,” the law is.). As our “emphasis [shifts] to entrepreneurialism,” Corp. Express, 292 F.3d at 780, these precedents apply a fortiori.

*293Likewise, “an incentive system designed ‘to ensure that the drivers’ overall performance meets the company standards’ ... is fully consistent with an independent contractor relationship.” C.C. Eastern, 60 F.3d at 860 (quoting NAVL, 869 F.2d at 603). At the same time, a contractual willingness to share a small part of the risk — for instance, by providing-fuel reimbursements when prices jump sharply, or by guaranteeing a certain minimum amount of income for making a vehicle available — does not an employee make. See Argix Direct, Inc., 343 N.L.R.B. at 1019 (contractors were independent even though the “[e]mployer also pays the owner-operators a fuel surcharge when the price of fuel surpasses a preset average”).

The Regional Director also emphasized that these “contractors perform a function that is a regular and essential part of FedEx Home’s normal operations, the delivery of packages,” and that few have seized any of the alleged entrepreneurial opportunities. Representation Decision, slip op. at 34, 38. While the essential nature of a worker’s role is a legitimate consideration, it is not determinative in the face of more compelling countervailing factors, see Aurora Packing v. NLRB, 904 F.2d 73, 76 (D.C.Cir.1990), otherwise companies like FedEx could never hire delivery drivers who are independent contractors, a consequence contrary to precedent, see St. Joseph News Press, 345 N.L.R.B. at 479. And both the Board and this court have found the failure to take advantage of an opportunity is beside the point. See C.C. Eastern, 60 F.3d at 860 (opportunities cannot be ignored unless they are the sort workers “cannot realistically take,” and even “one instance” of a driver using such an opportunity can be sufficient to “show[] there is no unwritten rule or invisible barrier preventing other drivers from likewise exercising them contractual right”); Arizona Republic, 349 N.L.R.B. at 1045. Instead, “it is the worker’s retention of the right to engage in entrepreneurial activity rather than his regular-exercise of that right that is most relevant for the purpose of determining whether he is an independent contractor.” C.C. Eastern, 60 F.3d at 860.8

III.

Our dissenting colleague reads our precedent differently than we do, and thus reaches a different conclusion. Of course the facts in our past holdings are not identical to those here, but there is no reason to distinguish this case from those where we have rejected the Board’s attempt to assert jurisdiction over independent contractors. In fact, this case is relatively straightforward because not only do these contractors have the ability to hire others without FedEx’s participation, only here do they own their routes — as in they can sell them, trade them, or just plain give them away. Moreover, if this court had shown as much deference to the Board as our colleague seems to suggest is its due, we wonder how C.C. Eastern and NAVL could possibly have been decided the way that they were. Because the dispute turns on precedent, we recommend you read our cases — they are quite short— and see for yourself whether our friend’s fight really is with us at all.

The dissent, for instance, argues that emphasizing entrepreneurialism has only truly begun with this case, and suggests we are doing so here for reasons apart *294from allegiance to precedent. See, e.g., Dis. Op. at 509-10, 518-19. Lest any be confused, we again quote Corporate Express: “[W]e uphold as reasonable the Board’s decision, at the urging of the General Counsel, to focus not upon the employer’s control of the means and manner of the work but instead upon whether the putative independent contractors have a ‘significant entrepreneurial opportunity for gain or loss.’” 292 F.3d at 780. We explicitly “agree[d] with the Board’s suggestion that the latter factor better captures the distinction between an employee and an independent contractor,” because, as reflected by the Restatement’s comment, it is not “the degree of supervision under which [one] labors but ... the degree to which [one] functions as an entrepreneur — that is, takes economic risk and has the corresponding opportunity to profit from working smarter, not just harder,” that better illuminates one’s status. Id. We retained the common law test (as is required by the Court’s decision in United Insurance), but merely “shifted our] emphasis to entrepreneurialism,” using this “emphasis” to evaluate common law factors such as whether the contractor “supplies his own equipment,” id. Corporate Express is thus doctrinally consistent with United Insurance and the Restatement.

Likewise, though conceding ours is a “fair reading of [Corporate Express ], which contains considerable language regarding entrepreneurial opportunity and the benefits of using such a test,” the dissent nonetheless argues there is a narrower way to understand that case such that it still focuses on the extent of control. Dis. Op. at 508. Put another way, Corporate Express — despite its seemingly unambiguous language — to him need not be read as evincing a shift towards entrepre-neurialism at all. We cannot adopt that reading because the court affirmatively declined to determine the contractors’ status under a “means and manner test.” Corp. Express, 292 F.3d at 780 (“[W]e need not answer that question.... ”). We take Corporate Express at its word.

But even if Corporate Express never happened, the result here is unchanged. While on some points C.C. Eastern and NAVL are distinguishable — for instance, in C.C. Eastern there were no appearance requirements for man or machine (though “the tractor must be suitable for the task at hand”), see 60 F.3d at 859, as in NAVL, 869 F.2d at 600 — the overwhelming majority of factors favoring independent contractor status are the same, and, importantly, this case is particularly straightforward because only here can the contractors own and transfer the proprietary interest in their routes. Moreover, all contractors here own their vehicles, something that cannot be said in NAVL, where not even the majority did. See id. True, these drivers — who need not be, and not always are, the same persons as the contractors — must wear uniforms and the like, but a rule based on concern for customer service does not create an employee relationship. See C.C. Eastern, 60 F.3d at 859. And while in C.C. Eastern “we [were] able to find ... only one instance of a driver” using an entrepreneurial opportunity, that lone “example show[ed] that there [was] no unwritten rule or invisible barrier preventing other drivers from likewise exercising their contractual right.” Id. at 860. In this case, we need not and do not rely on just one example of the exercise of rights. Even on an incomplete record there are many such examples; routes have been sold for a profit; substitutes and helpers have been hired without FedEx’s involvement; one contractor has negotiated for higher rates; and contractors have incorporated. Under the fairest reading of our precedent, these are independent contractors.

*295IV.

We have considered all the common law factors, and, on balance, are compelled to conclude they favor independent contractor status. The ability to operate multiple routes, hire additional drivers (including drivers who substitute for the contractor) and helpers, and to sell routes without permission, as well as the parties’ intent expressed in the contract, augurs strongly in favor of independent contractor status. Because the indicia favoring a finding the contractors are employees are clearly outweighed by evidence of entrepreneurial opportunity, the Board cannot be said to have made a choice between two fairly conflicting views. Though evidence can be marshaled and debater’s points scored on both sides, the evidence supporting independent contractor status is more compelling under our precedent. The evidence might have been stronger still had not the Regional Director erroneously excluded the national data. But even as the record stands, the Board’s determination was legally erroneous.

Accordingly, we grant the petition, vacate the Board’s order, and deny the cross-application for enforcement.

So ordered.

GARLAND, Circuit Judge,

dissenting in part:

In National Labor Relations Board v. United Insurance Co. of America, the Supreme Court held that Congress intended “the Board and the courts” to “apply the common-law agency test ... in distinguishing an employee from an independent contractor” under the National Labor Relations Act (NLRA). 890 U.S. 254, 256, 88 S.Ct. 988, 19 L.Ed.2d 1083 (1968). In this case, the National Labor Relations Board (NLRB) applied that multi-factor test and concluded that FedEx Home Delivery’s drivers are the company’s employees. My colleagues disagree, concluding that the drivers are independent contractors.

This is not merely a factual dispute. Underlying my colleagues’ conclusion is their view that the common-law test has gradually evolved until one factor— “whether the position presents the opportunities and risks inherent in entrepreneu-rialism” — has become the focus of the test. Op. at 497, 503. Moreover, in their view, this factor can be satisfied by showing a few examples, or even a single instance, of a driver seizing an entrepreneurial opportunity. Id. at 502.

Although I do not doubt my colleagues’ sincerity, I detect no such evolution. To the contrary, the Board and the courts have continued to follow the Supreme Court’s injunction that “there is no shorthand formula or magic phrase that can be applied to find the answer, but all of the incidents of the relationship must be assessed and weighed with no one factor being decisive.” United Ins., 390 U.S. at 258, 88 S.Ct. 988. The common-law test may well be “unwieldy,” Op. at 497, but a court of appeals may not “ ‘displace the Board’s choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.’ ” United Ins., 390 U.S. at 260, 88 S.Ct. 988 (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951)). While the NLRB may have authority to alter the focus of the common-law test, see Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 863-64, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), this court does not. Because “the least that can be said for the Board’s decision is that it made a choice between two fairly conflicting views, ... the Court of Appeals should have enforced the Board’s order.” United Ins., 390 U.S. at 260, 88 S.Ct. 988. Accordingly, on the *296existing record, I cannot join in condemning the Board’s determination.

I can and do, however, fault the Board’s refusal to give FedEx a fair opportunity to make its case under the appropriate test. As the court correctly notes, the Regional Director refused to permit FedEx to introduce evidence that may be relevant to the question of whether its drivers have significant entrepreneurial opportunities. Regardless of whether one considers entrepreneurial opportunity as only one factor (as it is in the common-law test) or as the focus of the test (as my colleagues believe it to be), FedEx surely had the right to introduce the evidence necessary to make its case.

I

A

The NLRA makes it “an unfair labor practice for an employer ... to refuse to bargain collectively with the representatives of his employees.” 29 U.S.C. § 158(a)(5). Section 2(3) of the Act, as amended by the 1947 Labor Management Relations Act, provides that the term “employee” “shall not include ... any individual having the status of an independent contractor.” 29 U.S.C. § 152(3). In United Insurance, the Supreme Court held that the “obvious purpose of this amendment was to have the Board and the courts apply general agency principles in distinguishing between employees and independent contractors under the Act.... Thus there is no doubt that we should apply the common-law agency test ... in distinguishing an employee from an independent contractor.” United Ins., 390 U.S. at 256, 88 S.Ct. 988.1 The Court recognized that “[t]here are innumerable situations which arise in the common law where it is difficult to say whether a particular individual is an employee or an independent contractor.... In such a situation as this there is no shorthand formula or magic phrase that can be applied to find the answer, but all of the incidents of the relationship must be assessed and weighed with no one factor being decisive. What is important is that the total factual context is assessed in light of the pertinent common-law agency principles.” Id. at 258, 88 S.Ct. 988.

The cases under review in United Insur-' anee presented the question of whether certain agents of an insurance company were employees or independent contractors. The Supreme Court determined that

the decisive factors in these cases become the following: the agents ... perform functions that are an essential part of the company’s normal operations; they need not have any prior training or experience, but are trained by company supervisory personnel; they do business in the company’s name with considerable assistance and guidance from the company and its managerial personnel and ordinarily sell only the company’s policies; the “Agent’s Commission Plan” that contains the terms and conditions under which they operate is promulgated and changed unilaterally by the company; the agents account to the company for the funds they collect under an elaborate and regular reporting procedure; the agents receive the benefits of the company’s vacation plan and group insurance and pension fund; and the *297agents have a permanent working arrangement with the company under which they may continue as long as their performance is satisfactory.

Id. at 258-59, 88 S.Ct. 988. The Court confirmed that the Board had “examined all of these facts and found that they showed the debit agents to be employees.” Id. at 260, 88 S.Ct. 988. This finding, the Court said, “involved the application of law to facts — what do the facts establish under the common law of agency: employee or independent contractor?” Id. Although the Court noted that such a determination “involved no special administrative expertise that a court does not possess,” it nonetheless held that, “ ‘even as to matters not requiring expertise,’ ” a court of appeals may not “ ‘displace the Board’s choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.’ ” Id. (quoting Universal Camera Corp., 340 U.S. at 488, 71 S.Ct. 456). As long as it “can be said for the Board’s decision ... that it made a choice between two fairly conflicting views, ... the Court of Appeals should ... enforce[ ] the Board’s order. It [is] error to refuse to do so.” Id.

In the succeeding decades, the NLRB has consistently “[a]ppl[ied] the common-law agency test as interpreted by the Supreme Court in NLRB v. United Insurance Co.” to determine whether a worker is an employee or an independent contractor. Roadway Package Sys., Inc. (Roadway II), 326 N.L.R.B. 842, 843 (1998); id. at 849 (declaring that the Supreme Court’s “cases teach us not only that the common law of agency is the standard to measure employee status but also that we have no authority to change it”).2 In so doing, the Board has looked to the Restatement (Second) of Agency for the factors relevant to making that determination. See, e.g., cases cited supra note 2. Those ten (nonex-haustive) factors are set out in the margin.3 Following the injunction of the Supreme Court, the Board has continued to reaffirm that “ ‘all of the incidents of the relationship must be assessed and weighed with no one factor being decisive.’ ” Roadway III, 326 N.L.R.B. at 850 (quoting United Ins., 390 U.S. at 258, 88 S.Ct. 988); see, e.g., Ariz. Republic, 349 N.L.R.B. at 1042-46; St. Joseph News-Press, 345 N.L.R.B. at 477-78.

This Circuit has likewise recognized that “Congress intended that traditional agency *298law principles guide the determination whether workers are employees ... or independent contractors,” N. Am. Van Lines, Inc. v. NLRB (NAVL), 869 F.2d 596, 598 (D.C.Cir.1989), and has looked to the Restatement factors for those principles, id. at 599-600. See Local 777, Democratic Union Org. Comm. v. NLRB (Local 777), 608 F.2d 862, 872-73 (D.C.Cir.1978); cf. Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 751-52, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989) (citing both United Insurance and the Restatement’s “nonex-haustive list of factors relevant to determining whether a hired party is an employee” in construing the meaning of the term “employee”.under the Copyright Act of 1976). “[T]he ultimate determination,” we have said, “requires a broad examination of all facets of the relationship between [the] company and” the worker. NAVL, 869 F.2d at 604 (citing United Ins., 390 U.S. at 258, 88 S.Ct. 988); see C.C. Eastern, Inc. v. NLRB, 60 F.3d 855, 858 (D.C.Cir.1995). As we further noted in NAVL, “[i]n applying traditional agency law principles, the NLRB and the courts have adopted a right-to-control test.” 869 F.2d at 599. That “test requires an evaluation of all the circumstances,” but it focuses the greatest attention on those factors indicating “ ‘the extent of the actual supervision exercised by a putative employer over the “means and manner” of the workers’ performance.’ ” Id. (quoting Local 777, 603 F.2d at 873); see C.C. Eastern, 60 F.3d at 858 (same).4

B

My colleagues contend that “[gradually,” both this Court and the Board shifted away from “the unwieldy control inquiry in favor of a more accurate proxy: whether the ‘putative independent contractors have significant entrepreneurial opportunity for gain or loss.’” Op. at 496-97 (quoting Corporate Express Delivery Sys. v. NLRB, 292 F.3d 777, 780 (D.C.Cir.2002)). “[W]hile all the considerations at common law remain in play,” my colleagues maintain that now the “emphasis” is on “whether the position presents the opportunities and risks inherent in entrepreneurialism.” Id. at 497.

The cases, however, do not evidence this gradual evolution to a test that emphasizes entrepreneurial opportunity. According to my colleagues, the evolutionary process began “implicitly]” in our decisions in NAVL and C.C. Eastern. Op. at 497. It is true that those decisions listed entrepreneurial opportunity as a relevant factor, notwithstanding that it is not expressly mentioned in either United Insurance or the Restatement (or in any comment to the Restatement5). But those decisions explicitly stated that entrepreneurial opportunity was only one of multiple factors to consider — and not the most important one.

*299In C.C. Eastern, for example, we concluded that the entrepreneurial opportunities afforded by a driver’s “right to hire ... his own employees to help him” and to “use his tractor himself to haul for anyone” had “some probative weight,” but that they were “less important to our determination of the drivers’ status than [wa]s the absence of evidence that the Company supervises the means and manner of their work.” 60 F.3d at 859, 860 (emphasis added).6 Similarly, we said in NAVL that: “Other factors [than control] weigh in the determination,” including “the extent to which the worker has assumed entrepreneurial risk and stands to gain from risks undertaken.... However, these factors are of far less importance than the central inquiry whether the corporation exercises control over the manner and means of the details of the worker’s performance; indeed, these factors are probative only to the extent that they bear upon and further that inquiry.” 869 F.2d at 599-600 (emphasis added). Nothing in these unambiguous declarations suggests any kind of “struggle[ ] to articulate exactly what we meant” in those cases. Op. at 496. The contention that C.C. Eastern and NAVL implicitly signaled the advent of an evolutionary process, id. at 496-97, is simply incorrect.

My colleagues cite only one case from this (or any) Circuit, our 2002 opinion in Corporate Express, for the proposition that entrepreneurial opportunity has “explicitly]” become the emphasis of the independent contractor test. Op. at 497. I do not dispute that theirs is one fair reading of that opinion, which contains considerable language regarding entrepreneurial opportunity and the benefits of using such a test. But Corporate Express did not purport to overrule Supreme Court, Circuit, and Board precedent. Indeed, in affirming as reasonable the Board’s determination that the owner-operator drivers in that case were not independent contractors, the court not only agreed that they lacked entrepreneurial opportunity, but also acknowledged that the Board may have correctly determined that the employer controlled the way in which they performed their jobs. Corporate Express, 292 F.3d at 779-80. Hence, Corporate Express can also be read as merely holding that the Board was reasonable in determining that entrepreneurial opportunity tipped the balance in that ease — a logical result given that the court thought the vector of the other common-law factors somewhat unclear, see id. at 780 & n. *, while finding that the “owner-operators lacked all entrepreneurial opportunity,” id. at 780-81 (emphasis added). And when there are two possible readings of an opinion, only one of which is consistent with earlier precedent, the appropriate course is to adopt the consistent reading — on the presumption that the court followed the command of stare decisis. Cf. Indep. Cmty. Bankers of Am. v. Bd. of Governors of the Fed. Reserve Sys., 195 F.3d 28, 34 (D.C.Cir.1999) (“In the event of conflicting panel opinions ... the earlier one controls, as one panel of this court may not overrule another.” (internal quotation marks and citation omitted)).7

*300There was certainly nothing in the NLRB’s opinion in Corporate Express to suggest that entrepreneurial opportunity had become the focus of the Board’s own analysis. To the contrary, the Board simply followed its traditional approach of examining the common-law factors — including, inter alia, both entrepreneurial opportunity and employer control. Corporate Express Delivery Sys., 332 N.L.R.B. 1522, 1522 (2000). After doing so, it concluded that, “weighing all of the inciden,ts of their relationship with the Respondent, we find that the owner-operators are employees and not independent contractors.” Id. (emphasis added).

My colleagues maintain that the evolution toward an emphasis on entrepreneurial opportunity “seems to play a part in the Board’s own cases,” although they “readily concede the Board’s language has not been ... unambiguous.” Op. at 498. The principal NLRB decision upon which they rely is Arizona Republic, a decision issued after the Regional Director’s decision in this case. Ariz. Republic, 349 N.L.R.B. 1040 (May 8, 2007). But Arizona Republic does not support my colleagues’ proposition either. Once again, it is true that one of the factors weighing in favor of the independent contractor determination in that case was “entrepreneurial potential.” Id. at 1042. There simply is no indication, however, that this factor was the “emphasis” of the test Arizona Republic applied. To the contrary, the Board announced that, “[i]n determining the status of the [newspaper] carriers in this case, we rely on ... the common-law factors.” Id. at 1043. It then proceeded to examine the Restatement factors individually, id. at 1043-46, repeating its oft-stated mantra that “this list of factors is not exclusive or exhaustive, and that, in applying the common-law agency test, [we] will consider ‘all the incidents of the individual’s relationship to the employing entity,’ ” id. at 1042 (quoting Roadway III, 326 N.L.R.B. at 850). The Board ultimately concluded that the majority of the factors “weighted] in favor” of finding that the carriers were independent contractors. Id. at 1043-46. One of those factors was entrepreneurial opportunity; another was the employer’s lack of control over the carriers. Id. But the Board gave pride of place to neither one, declaring only that the common-law factors, “on balance,” yielded the conclusion that the carriers were independent contractors. Id. at 1043. The same traditional common-law analysis was employed in both of the other NLRB decisions that my colleagues cite. Op. at 498.8

Finally, I do not dispute my colleagues’ contention that the multi-factor analysis of the common law is “not especially amenable to any sort of bright-line rule.” Op. at 495-96. Although they acknowledge that an emphasis on entrepreneurial opportunity “does not make applying the test purely mechanical,” they maintain that “the line drawing is easier” under that test. Id. at 498. There is no question that the common-law agency test makes for difficult line drawing. Indeed, the Supreme Court expressly acknowledged as much when it announced the test. See United Ins., 390 U.S. at 258, 88 S.Ct. 988 (“There are innumerable situations which arise in the common law where it is difficult to say whether a particular individual is an employee or *301an independent contractor.... ”). It may also be true that line drawing under an entrepreneurial opportunity test would be easier, although that is hardly assured. After all, while my colleagues perceive clear entrepreneurial opportunity in this case, neither the Board nor I see it that way. See infra Part II.

But the comparative practical advantage of one or the other of these two tests has no bearing on which one we must apply. Although the NLRB may have authority to alter the test, or at least to alter its focus, see Chevron, 467 U.S. at 842-13, 863-64, 104 S.Ct. 2778, this court does not. Until the Supreme Court or the Board tells us differently, we must continue to apply the multi-factor common-law test as set forth by the Supreme Court and applied by the Board.

II

In this case, the NLRB’s Regional Director applied the traditional “common law agency test.” FedEx Home Delivery and Local 25, N.L.R.B. Case Nos. 1-RC-22034, 22035, slip op. at 33 (First Region, Sept. 20, 2006) [hereinafter Regional Director's Decision], In so doing, she “consider[ed] all the incidents of the individual’s relationship with the employing entity,” id., including both the extent of FedEx’s control over the drivers and the extent of the drivers’ entrepreneurial opportunities, id. at 35-36. Although the Regional Director acknowledged many of the facts cited by my colleagues in support of FedEx’s contention that the contractors are independent contractors, facts that I do not rehearse here, she concluded that they were outweighed by other factors supporting employee status. Id. at 39. Part II.A reviews the bulk of the factors that the Director found to support employee status. Part II.B discusses her analysis of the • issue of entrepreneurial opportunity.

A

In a lengthy and considered opinion, the Regional Director found the following facts to favor a determination that FedEx Home Delivery’s drivers, whom the company calls “contractors,” were employees:

[A]ll the FedEx Home contractors perform a function that is a regular and essential part of FedEx Home’s normal operations, the delivery of packages.... [A]ll contractors must do business in the name of FedEx Home[,] ... wear[ ] FedEx Home-approved uniforms and badges, ... [and] operate vehicles that must meet FedEx Home specifications and uniformly display the FedEx’ Home name, logo, and colors.... No prior delivery training or experience is required, and FedEx Home will train those with no experience....

... [Contractors are not permitted to use their vehicles for other purposes while providing service for FedEx Home. The contractors have a contractual right to use their FedEx Home trucks in business activity outside their relationship with FedEx Home during off-hours, provided they remove all FedEx Home markings, but only one former multiple route contractor ... and no current contractors at either Wilmington terminal have ever done so....

... FedEx Home exercises substantial control over all the contractors’ performance of them functions. FedEx Home offers what is essentially a take-it-or-leave-it agreement.... [It] retains the right to reconfigure the service area unilaterally. All contractors must furnish a FedEx Home-approved vehicle and FedEx Home-approved driver daily from Tuesday through Saturday; they do not have discretion not to provide delivery service on a given day. While all contractors control their starting times and take breaks when they wish, their control over their work schedule is *302circumscribed by the requirement that all packages be delivered on the day of assignment....

... FedEx Home prorides support to all its contractors in various ways that are inconsistent with independent contractor status.... FedEx Home provides extensive support to contractors by offering the Business Support Package and arranging for the required insurance, thus providing an array of required goods and services that would be far more difficult for contractors to arrange on their own.... FedEx Home also offers to arrange for approved substitute drivers for its contractors by virtue of the Time Off Program. FedEx Home prorides contractors who maintain sufficient vehicle maintenance accounts with $100 per accounting period to help defray repair costs[, and] requires contractors to permit FedEx Home to pay certain vehicle-related taxes and fees on their behalf and to have the payments deducted from their settlement.

Regional Director’s Decision at 34-37 (internal citations omitted). Many of these are the kind of facts that United Insurance, the Restatement, and numerous Circuit and Board decisions confirm are indicative of employee status.9

My colleagues nonetheless reject the import of many of these facts, arguing that they merely “reflect differences in the type of service the contractors are providing rather than differences in the employment relationship.” Op. at 501. In particular, the court rejects the import of the following requirements imposed by FedEx: that drivers wear a recognizable uniform; that vehicles be of a particular color and size range; that trucks display the FedEx logo in a size larger than Department of Transportation regulations require; that drivers complete a driving course if they do not have prior training; that drivers submit to two customer service rides per year to audit their performance; and that a truck and driver be available for deliveries every Tuesday through Saturday. Id. The courts and the Board,10 however, have repeatedly regarded the presence or absence of these very factors as important in determining whether a worker is an employee or independent contractor.11

*303One factor that the Regional Director emphasized was that the drivers “perform a function that is a regular and essential part of FedEx Home’s normal operations, the delivery of packages” to homes. Op. at 502. .Although my colleagues acknowledge that “the essential nature of a worker’s role is a legitimate consideration,” they minimize it as “not determinative.” Id. But that is true of every factor in the common-law test. See United Ins., 390 U.S. at 258, 88 S.Ct. 988 (holding that “all of the incidents of the relationship must be assessed and weighed with no one factor being decisive”). Moreover, the cases have repeatedly cited this particular factor in concluding that workers are employees.12 In short, there is no basis for discounting the significance of the traditional factors upon, which the Regional Director relied in concluding that the FedEx drivers are employees rather than independent contractors.

B

In accord with court and agency precedent, the Regional Director also considered whether FedEx Home Delivery’s drivers have significant entrepreneurial opportunity for gain or loss. For the following reasons, she concluded that the evidence of entrepreneurial opportunity was weak:

The contractors’ compensation package also supports employee status. With [one] exception ..., FedEx Home unilaterally establishes the rates of compensation for all contractors.... [TJhere is little room for the contractors to influence their income through their own efforts or ingenuity, as their terminal manager determines, for the most part, how many deliveries they will make each day.... A contractor’s territory may be unilaterally reconfigured by FedEx Home. FedEx Home tries to insulate its contractors from loss to some degree by means of the vehicle availability payment, which they receive just for showing up, and the temporary core zone density payment, both of which payments guarantee contractors an income level predetermined by FedEx Home, irrespective of the contractors’ personal initiative. FedEx Home also shields drivers from loss due to substantial increases in fuel prices by means of the fuel/mileage settlement.

Regional Director’s Decision at 37.

Notwithstanding these findings, my colleagues perceive many “characteristics of entrepreneurial potential” in the drivers’ relationship to FedEx. Op. at 498. Some of the characteristics they cite, however, appear to have little to do with entrepreneurial opportunity. For example, the court’s opinion notes that FedEx’s Standard Contractor Operating Agreement “specifies the contractor is not an employee of FedEx for any purpose.” Id. at 498-99. But the label FedEx puts on its rela*304tionship with its workers does not affect whether they have entrepreneurial opportunity for gain or loss.13

My colleagues also observe that FedEx “may not prescribe hours of work [or] whether or when the contractors take breaks,” and that the drivers “are not subject to reprimands or other discipline,” Op. at 498 — all of which go not to the workers’ entrepreneurial opportunity but to the extent of the employer’s control, a factor discussed in Part II.A above. In any event, although FedEx does not fix specific hours or break times, it does require its contractors to provide delivery services every day, Tuesday through Saturday, and to finish each day’s deliveries by the end of the day. Regional Director’s Decision at 17, 36.14 The insurance agents in United Insurance had neither fixed hours nor fixed break times, yet the Supreme Court affirmed the Board’s determination that they were employees. See 390 U.S. at 258, 88 S.Ct. 988 (noting that the “agents perform their work primarily away from the company’s offices and fix their own hours of work and work days”). And while FedEx does not have a disciplinary system based on “reprimands,” Op. at 498, it does deny drivers bonuses if they fail release audits and uses both counseling and termination as tools to ensure compliance with work rules. Regional Director’s Decision at 12, 21. Again, the same was true in United Insurance. See 390 U.S. at 258, 88 S.Ct. 988 (noting that if a complaint against an agent is “well founded, the manager talks with the agent to set him straight,” “caution[s]” him, and “[i]f improvement does not follow,” the company may “fire [him] at any time”).

In addition, my colleagues state that “[a]t least one contractor has negotiated with FedEx for higher fees.” Op. at 499. Without agreeing that a worker’s ability to negotiate his salary takes him out of the category of “employee,” the Regional Director rightly regarded the only evidence on this point as quite weak: One former manager testified that one former driver “once requested some customer service rides to gauge if his core zone payment was set properly, and the payment was raised as a result, although [the manager] was not sure by how much. There is no evidence that any other contractors at the Wilmington facilities have negotiated a change in their core zone payment.” Regional Director’s Decision at 20.

Closer to the mark on the issue of entrepreneurial opportunity is the court’s observation that drivers “are responsible for all the costs associated with operating and *305maintaining their vehicles.” Op. at 498.15 But FedEx does much to limit the drivers’ risk of loss. As the Regional Director found, the company “shields drivers from loss due to substantial increases in fuel prices by means of the fuel/mileage settlement” and guarantees them a significant amount of income “just for showing up.” Regional Director’s Decision at 37. My colleagues maintain that this “contractual willingness to share a small part of the risk ... does not an employee make.” Op. at 502. The NLRB reasonably differs, as to both the magnitude of the shared risk and its import.

My colleagues further note that, under the Operator Agreement, drivers “may use the vehicles for other commercial or personal purposes” when they are not in the service of FedEx, “so long as they remove or mask all FedEx Home logos and markings.” Op. at 498. But do the drivers actually use their trucks for other purposes? Not so much. Indeed, the most that can be said is that “some do use them for personal uses like moving family mem-' bers,” id., hardly an indicator of a “ ‘significant entrepreneurial opportunity for gain or loss,’ ” id. at 497 (quoting Corporate Express, 292 F.3d at 780). Although the drivers’ use of them trucks to conduct business independent of FedEx could well be an indicator of entrepreneurialism, the Regional Director found that “no current contractors at either Wilmington terminal have ever done so.” Regional Director’s Decision at 35.16 Nor would they have much time, even if they wanted to. The Operator Agreement states that the company “seek[s] to manage its business so that it can provide sufficient volume of packages to Contractor to make full use of Contractor’s equipment.” FedEx Home Delivery Standard Contractor Operating Agreement, Private Background Statement (J.A. 720) (emphasis added). The contractor must provide daily service,17 and “[w]hile the Equipment is in the service of [FedEx], it shall be used by Contractor exclusively for the carriage of the goods of [FedEx], and for no other purpose.” Id. § 1.4 (J.A. 722).

Based on these facts, the Regional Director found that the

“lack of pursuit of outside business activity appears to be less a reflection of entrepreneurial choice by the ... drivers and more a matter of the- obstacles created by their relationship with [the Company.]” Thus, the contractors’ contractual right to engage in outside business falls within the category of “entrepreneurial opportunities that they cannot realistically take,” because the contractors’ work schedules prevent them from taking on additional business during their off-hours during the workweek.

Regional Director’s Decision at 35 (quoting Roadway III, 326 N.L.R.B. at 851 & n. 36). That is at least a fair conclusion, and consequently one that we may not displace. See United Ins., 390 U.S. at 260, 88 S.Ct. 988.

*306Another indicator of entrepreneurialism to which my colleagues point is the fact that operators may hire drivers as temporary replacements and occasional helpers. I agree that the “ability to hire ‘others to do the Company’s work’ is no small thing in evaluating ‘entrepreneurial opportunity.’” Op. at 500 (quoting Corporate Express, 292 F.3d at 780-81). But see Roadway HI, 326 N.L.R.B. at 845 (finding that drivers are employees notwithstanding that, “without prior approval from Roadway, [they] may also use helpers or replacement drivers on their routes”). Once again, however, the record evidence on this issue was weak. The Regional Director found that “many contractors who hire substitute drivers use the FedEx Home ‘temp’ drivers,” Regional Director’s Decision at 29, and that the record did not reveal how often contractors hired outside helpers, id. at 30. Nor was there any evidence that any operator at the terminals at issue in this case ever hired a substitute on a full-time basis.

My colleagues also note the fact that FedEx drivers “may contract to serve multiple routes,” and that if they do so, they may hire other drivers to handle those routes. Op. at 499. Although this, too, may indicate entrepreneurial opportunity, there were only 3 multiple-route drivers operating out of the Wilmington facilities. Regional Director’s Decision at 28. This is as compared to a case like Arizona Republic, in which the Board determined that newspaper carriers were independent contractors after finding that 363 of them had multiple routes. Ariz. Republic, 349 N.L.R.B. at 1045 n. 6. Moreover, the Regional Director excluded multiple-route drivers from the bargaining unit on the ground that they were not employees but rather statutory supervisors. Regional Director’s Decision at 42-43.

My colleagues find particularly significant the fact that drivers have a contractual right to sell their routes, and that this could provide an opportunity for profit. That theoretical possibility, however, is tightly constrained. The drivers may sell only to those buyers whom FedEx accepts as qualified; the company gives out routes without charge,18 as it did at the two Wilmington terminals; and FedEx can reconfigure a route, “in its sole discretion,” at any time. Regional Director’s Decision at 16 (referencing the FedEx Operating Agreement); see id. at 38. These facts cannot help but limit (or eliminate) any opportunity for profit. See id. at 60 n. 73.

In light of these constraints, it is not surprising that, although there was evidence that drivers abandoned their routes without selling them, id. at 32, there was little evidence that any driver had ever materially profited from a sale: “[T]here is no evidence that any Ballardvale contractor has ever sold a route,” and there is evidence of only one single-route sale at Jewel Drive. Id. at 31, 38.19 The only evidence of profit on that sale was the uncorroborated testimony of the former *307operator that he sold the route and truck together for at least $3000 more than the truck’s market value, minus $1000 he paid to the broker. Id. at 31-32. As the Regional Director noted, the fact that the sale was “combined with the sale of a truck ... makes the portion attributable to the route murky.” Id. at 38. Based on the operator’s statement alone, he may have netted no more than $2000 — without factoring in his expenses over the two years he had the truck and route. More important, the evidence that there was any gain at all was “murky” indeed. As the Regional Director pointed out, although the operator claimed that he had a bill of sale to support his testimony, and told the hearing officer that he would produce it, he never did. Id. at 57 n. 59. Given that the burden is on the proponent of independent contractor status to prove its case,20 it was not unreasonable for the Director to conclude that FedEx had failed to do so.

C

It would be a mistake, however, to read the court’s opinion as reflecting nothing more than a factual disagreement with the NLRB, even on the question of whether the drivers had entrepreneurial opportunity. There is something more important at stake here. In concluding that the indicia of entrepreneurial opportunity were weak, the Regional Director emphasized that few operators seized any of the opportunities that allegedly were available to them. Accordingly, she adhered to the NLRB’s precedent in Roadway III, which involved FedEx Home’s predecessor corporation, wherein the “Board found that evidence of a few ... sales ... [was] insufficient to support a finding of independent contractor status, particularly since it was unclear from the record whether any driver had profited materially from a sale.” Regional Director’s Decision at 38 (citing 326 N.L.R.B. at 853).

My colleagues, by contrast, maintain that the failure to actually exercise theoretical opportunities is “beside the point” because “ ‘it is the worker’s retention of the right to engage in entrepreneurial activity rather than his regular exercise of that right that is most relevant.’ ” Op. at 502 (quoting C.C. Eastern, 60 F.3d at 860). But the proper emphasis in that quotation from our C.C. Eastern opinion is on the word “regular.” It may not be necessary for workers to regularly exercise their right to engage in entrepreneurial activity for that factor to weigh in the balance, but “if a company offers its workers entrepreneurial opportunities that they cannot realistically take, then that does not add any weight to the Company’s claim that the workers are independent contractors.” C.C. Eastern, 60 F.3d at 860.

Quoting C.C. Eastern and citing Arizona Republic, my colleagues suggest that “even ‘one instance’ of a driver using such an opportunity can be sufficient to ‘show[ ] there is no unwritten rule or invisible barrier preventing other drivers from likewise exercising their contractual right.’” Op. at 502. But all C.C. Eastern held was that under those circumstances, the Board had erred in “discount[ing] to zero” the significance of that single factor in the traditional multi-factor test. C.C. Eastern, 60 F.3d at 860. Nor is there anything in Arizona Republic to suggest that the Board believes that the exercise of contractual opportunity by one or even a small number of drivers can be sufficient. In that case, *308“[m]any carriers h[e]ld other jobs,” “40 percent of the carriers actually solicited new subscriptions,” and 363 carriers— roughly 29 percent of all carriers — had multiple routes. 349 N.L.R.B. at 1045; id. at 1045 n. 6. It was in this context, in which “many” carriers held other jobs, solicited business, and had multiple routes — and hence had proven opportunity — that the Board said “the fact that many [other] carriers choose not to take advantage of this opportunity to increase their income does not mean that they do not have the entrepreneurial potential to do so.” Id. at 1045; compare Op. at 498. In the instant case, by contrast, no FedEx driver has another job or solicits business from his delivery customers,21 and only three have multiple routes. Regional Director’s Decision at 7, 28.

The import of my colleagues’ suggestion that one or even a few examples of the exercise of contractual rights can be enough to decide the entrepreneurialism factor is magnified by them view that this factor is not just one element in a multi-factor test, but rather the test’s “emphasis” — so that an insubstantial exercise may, in effect, tilt the entire outcome.22 That was certainly not the role that entre-preneurialism played in C.C. Eastern, in which we held that, although indicia of entrepreneurial opportunity did “have some probative weight,” they were “less important to our determination of the drivers’ status than ... the absence of evidence that the Company supervises the means and manner of their work.” 60 F.3d at 859; see id. at 860. Nor has it played that role in any other case.

It is not unreasonable for the NLRB to take the position that a material number of workers must actually take advantage of an opportunity before it will conclude that the opportunity is significant and realistic rather than insubstantial and theoretical. See Regional Director’s Decision at 39. Even if that is not the better rule, “the least that can be said for the Board’s decision is that it made a choice between two fairly conflicting views, and under these circumstances the Court of Appeals should have enforced the Board’s order.” United Ins., 390 U.S. at 260, 88 S.Ct. 988.

Ill

But there is a rub. Perhaps recognizing the thinness of the record, FedEx attempted to improve its proof of entrepreneurial opportunity by proffering “system-wide evidence concerning the number of route sales and the amount of profit, if any, on any such sale.” .Order, FedEx Home Delivery, N.L.R.B. Case Nos. 1-RC-22034, 22035 (Nov. 8, 2006) (Battista, Chrmn., dissenting). The Regional Director, however, “refus[ed] to permit the Employer to introduce” this evidence. Id. In light of that refusal, the Chairman of the NLRB dissented from the denial of Board review, protesting that this “evidence may be relevant to the issue of whether the drivers have an entrepreneurial interest in them position.” Id.

*309The Chairman was correct. Regardless of whether one regards entrepreneurial opportunity as only one factor or as the decisive factor in determining whether the drivers were independent contractors, FedEx surely had the right to introduce the evidence necessary to make its case. See 29 C.F.R. § 102.64(a) (“It shall be the duty of the hearing officer to inquire fully into all matters and issues necessary to obtain a full and complete i*ecord .... ”); cf. Drukker Commc’m, Inc. v. NLRB, 700 F.2d 727, 733 (D.C.Cir.1983) (“It is repugnant to notions of fairness for the government to seek sanctions for alleged wrongdoing while withholding .from the proceeding evidence that would demonstrate innocence.”).

In support of her ruling, the Regional Director said only that “evidence of route sales and entrepreneurial activity at other terminals had no bearing on the economic value of route sales” at the Wilmington facilities. Regional Director’s Decision at 6. Why that would be so, she did not say. Perhaps there is something special about the Wilmington facilities, especially as compared to others that are far away. But the Director did not identify what the idiosyncracy might be, or say why at least evidence regarding nearby terminals would not be relevant. See Burns Elec. Sec. Servs., Inc. v. NLRB, 624 F.2d 403, 409 (2d Cir.1980) (citing 29 C.F.R. § 102.64 in holding that the hearing officer erred in excluding evidence regarding the functions of certain workers at a nearby facility not within the proposed unit).

The exclusion of FedEx’s evidence appears particularly arbitrary because the Regional Director did consider other evidence regarding some terminals not at issue in this case. See Regional Director’s Decision at 4-5. So did the Board in Roadway III, where it relied on nationwide data to conclude that drivers were not independent contractors. See 326 N.L.R.B. at 851 (noting that “only 3 out of Roadway’s 5000 drivers nationwide” had “used their vehicles for other commercial purposes”); id. at 853 (“In a system of over 5000 drivers assigned to over 300 terminals, we find that these few forced sales, given them circumstances, are insufficient to support a finding of independent contractor status.”). And so, too, did a different Regional Director in RPS, Inc. See Decision and Order, N.L.R.B. Case No. 5-RC-14905 (Region 5, Aug. 3, 2000). That Regional Director relied on system-wide data to conclude that an employer’s drivers were independent contractors. Although no driver at the only facility at issue in that case used his vehicle for commercial purposes unrelated to RPS’s business, the Director found persuasive the fact that systemwide “many RPS drivers/contractors, possibly half’ did so. Id. at 56. That record, the Director said, made it “clear that drivers/contractors can realistically take advantage of a myriad of entrepreneurial activities.” Id. at 57.

In sum, the Regional Director’s failure to reasonably explain her refusal to permit FedEx to prove its case requires that we grant the petition for review and remand the case.

IV

My colleagues conclude that, “[bjecause the indicia favoring a finding [that] the contractors are employees are clearly outweighed by evidence of entrepreneurial opportunity, the Board cannot be said to have made a choice between two fairly conflicting views.” Op. at 504. They reach this conclusion by giving the entrepreneurial opportunity factor a weight, and analyzing it in a way, that the common law of agency — as construed by the courts and the NLRB — does not. Although the indeterminate nature of the common-law test may be problematic, and although the *310Board may have some room to modify it, this court cannot. Because the Board’s decision reflects a “choice between two fairly conflicting views,” we cannot displace it. United Ins., 890 U.S. at 260, 88 S.Ct. 988.

We can and should, however, reject the Board’s unexplained refusal to give FedEx a fair opportunity to make its case under the appropriate test. Accordingly, I would remand the case for further proceedings.

LEE, J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. This case concerns an August 1999 car accident involving the appellants and Dexter Myrick, who was employed by the appellees. The appellants filed their lawsuit in November 2000 and the appellees responded with a motion for summary judgment, which the trial court granted in April 2002.1 The appellants now appeal to *360this Court arguing that summary judgment was improper. We review their argument and find no merit; thus, we affirm.

FACTS

¶ 2. On August 2, 1999, appellants Jettie McCary and Lillie Fulwiley were riding in a van on their way home from work and were traveling north on Highway 25. The van was being driven by John Isonhood who was employed by Choctaw Maid Farms, the appellants’ employer, to transport the workers from the facility to their homes. As Isonhood approached the intersection of Highway 25 and County Road, Grace Mills pulled out from County Road onto Highway 25 traveling south. However, Mills pulled out in front of another driver, Dexter Myriek, who was driving a logging truck. Myriek was forced to hit his breaks to avoid a collision with Mills, and this forced him into the opposite lane of traffic where he collided with the appellants’ northbound van.

¶ 3. McCary incurred approximately $110,000 in related medical expenses and approximately $45,000 in past and future lost wages as a result of her injuries from the collision. She is totally disabled and has significant disfigurement to her lower body. Fulwiley incurred approximately $20,000 in related medical expenses, an estimated $20,000 in future medical expenses and approximately $100,000 in past and future lost wages.

¶ 4. McCary and Fulwiley filed suit against Myriek, Georgia Pacific Corporation, which was Myrick’s employer, Mills, John Isonhood, Choctaw Maid Farms, Inc. which provided the van transportation, Chris Wade who had contracted with Georgia Pacific for sale of timber, and Wade Land Management which was Chris Wade’s company.

¶ 5. A question arose concerning whether or not Myriek was acting as an employee of Wade at the time of the accident and, if so, whether Wade could be held vicariously liable for Myrick’s actions. Details of the employment relationship are addressed in more depth in the following discussion.

DISCUSSION

I. DID THE TRIAL COURT ERR IN GRANTING SUMMARY JUDGMENT?

¶ 6. On appeal, the appellants primarily argue that the trial court erred in granting the appellees’ motion for summary judgment. The appellants contend that sufficient evidence was presented to create genuine issues of material fact concerning whether Myriek was acting as an employee of Wade Land Management at the time of the accident.

This Court employs a de novo standard of review of a lower court’s grant or denial of summary judgment and examines all the evidentiary matters before it — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, there is no genuine issue of material fact and, the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied.

Leslie v. City of Biloxi, 758 So.2d 430(¶ 5) (Miss.2000). In their motion for summary judgment Chris Wade and Wade Land Management (“WLM”) argued that Myr-ick was an independent hauler for WLM and, therefore, WLM was not liable to the *361plaintiffs/appellants via respondeat superi- or for Myrick’s negligence in causing the accident.

The general rule is that the employer of an independent contractor has no vicarious liability for the torts of the independent contractor or for the torts of the independent contractor’s employees in the performance of the contract. In determining whether a employer-employee or independent contractor relationship existed, especially where third parties are affected, courts are not confined to the terms of the contract, but may look as well to the conduct of the parties.

Owens v. Thomae, 759 So.2d 1117(¶ 22) (Miss.1999) (citations omitted). In addition to the general rule described in Oiv-ens, we have recognized many “tests” or aspects of a relationship to examine in determining whether a person is an employee or an independent contractor:

[Wjhether the principal master has the power to terminate the contract at will; whether he has the power to fix the price in payment for the work, or vitally controls the manner and time of payment; whether he furnishes the means and appliances for the work; whether he has control of the premises; whether he furnishes the materials upon which the work is done and receives the output thereof, the contractor dealing with no other person in respect to the output; whether he has the right to prescribe and furnish the details of the kind and character of work to be done; whether he has the right to supervise and inspect the working during the course of the employment; whether he has the right to direct the details of the manner in which the work is to be done; whether he has the right to employ and discharge the sub employees and to fix their compensation; and whether he is obliged to pay the wages of said employees.

Miller v. Shell Oil Co., 783 So.2d 724(¶ 11) (Miss.Ct.App.2000). We look to the facts of this case de novo and apply the principles enunciated in Owens and Miller to determine whether Myrick was an independent contractor or an employee of WLM, such that summary judgment was or was not proper in this case.

¶ 7. WLM purchases timber and sells it to wood yards. In 1996, WLM contracted with Georgia Pacific to provide timber, and WLM in turn hired haulers to move the timber, one of whom was Myrick. Myrick and WLM entered into a contract in 1996 whereby Myrick would cut and haul lumber to Georgia Pacific for WLM. Myrick was not subject to any quotas set by WLM concerning delivery amounts, and Georgia Pacific would accept any amount of the specified lumber that Myrick chose to deliver.

¶ 8. In his deposition, which is included in the record, Chris Wade explained that Myrick bought his own timber, cut it, and hauled it all himself, and Wade never knew where or when Myrick was producing any wood until Myrick called him alerting that he had a load of logs to sell. Wade affirmed that “he didn’t have to pay a cent” for Myrick’s cutting operation and that he only used independent contractors because otherwise he would have to pay for the haulers’ trucks and operation costs. Wade explained that to his knowledge Myrick had other contracts with companies to deliver wood, just the same as he had a contract with WLM.

¶ 9. Myrick testified in his deposition that he decided his own work hours, which days he would work, and where he would work. He exclusively made decisions concerning harvest, sorting, loading and transportation of the timber. Myrick stated that he owned all of the equipment *362needed for his operation, including his two-ton truck which he and his brother exclusively purchased, repaired and maintained, and he had never gotten a loan for his logging business. Myrick testified that on the day of the accident he had left Georgia Pacific and was en route to his home at the time of the collision. Under the previously described test for determining independent contractor status, we find Myrick’s relationship with WLM to be that of an independent contractor and not employee/employer. Having so found, we next direct out attention to Richardson v. APAC-Mississippi, Inc., 631 So.2d 143 (Miss.1994), which the appellants cite in support of their argument.

¶ 10. In that case, Richardson’s vehicle was hit in the left side by Berg McCandless as he ran a red light. Richardson, 631 So.2d at 144. Richardson sued APAC on the basis of respondeat superior claiming that McCandless was acting as an APAC employee at the time of the accident. Id. APAC filed a motion for summary judgment claiming that APAC was not McCandless’s employer at the time of the accident, and the circuit court granted the motion. Id. at 146. Similar to facts in the present case, in Richardson, McCandless provided all of his own equipment, was responsible for maintenance and upkeep on the equipment, paid his own operating expenses, set his own hours and quotas, and was not under the control of APAC for any related decision-making. Id. at 144. The supreme court affirmed the trial court’s finding that the relationship between McCandless and APAC was clearly that of independent contractor. Id. at 152.

¶ 11. Looking further to Richardson, the appellants direct our attention to Richardson’s addition of a “public policy” test to determine liability. Id. at 150. The supreme court defined this new test as follows:

Today we explicitly add another factor in the balancing test, heretofore implicit. When a contract is made between two parties that as between themselves creates an independent contractor relationship and involves employment generally performed under a simple master/servant or employer/employee relationship, it will be upheld as between the parties. When, however, third parties are adversely affected, this Court will carefully scrutinize the contract to see if public policy should permit the transformation of an ordinarily employer/employee relationship into that of an independent contractor. A necessary condition precedent for the application of this factor, however, is that the party challenging the claimed relationship will be adversely affected, and denied an adequate legal remedy. In the absence of this, the right of parties to contract as they please is a constitutionally-protected right. Conversely, neither of the parties should be permitted to dispute a contractually-created independent contractor relationship between them when to do so adversely affects an injured third party.

Id. (citations omitted). The Richardson court found insufficient evidence was presented to show that McCandless was unable to pay or had insufficient insurance coverage to pay for Richardson’s injuries; thus, the court failed to address the possible extension of liability to APAC. Id. at 151. In the present case, Myrick was shown to be bankrupt and without insurance coverage. Thus, the appellants claim that since Myrick was not insured and had no money to compensate them for their injuries, WLM should be made to pay in the interests of public policy.

¶ 12. The Fifth Circuit addressed the Richardson case in McKee v. Brimmer, 39 F.3d 94 (5th Cir.1994). In McKee, the *363district court granted a summary judgment, finding the injured’s relationship with the responsible party was that of independent contractor, and the Fifth Circuit affirmed. Id. at 98. The court cited the public policy rule from Richardson and surmised the following:

The public policy factor from Richardson becomes an issue when the relationship between the alleged employer and the alleged employee would “ordinarily” be characterized as that of an employer/employee, but they have a contract which defines their relationship as that of independent contractors. In that case, the court will scrutinize the contract to see if the parties should be allowed to transform an employer/employee relationship into that of an independent contractor. In essence, an employer will not be allowed to escape liability by drafting a contract which labels its employee an independent contractor, but retains employer-like control over him.

Id. (citations omitted). WLM’s brief interprets McKee to say that the Richardson public policy exception does not serve as a “trump card” to hold in the hand to play when the facts do not create vicarious liability when the requisite relationship is not supported by the facts. Consequently, since the evidence presented shows Myrick was an independent contractor and there is no evidence of any attempt by WLM to control Myrick through written contracts or otherwise, the appellants’s public policy argument fails.

¶ 13. The Richardson court cited to other cases in which the public policy test had, in fact, already been used. See Hobbs v. Int’l Paper Co., 203 So.2d 488 (Miss.1967); Gulf Ref. Co. v. Nations, 167 Miss. 315, 145 So. 327 (1933) (Richardson court disagreed with); Kisner v. Jackson, 159 Miss. 424, 132 So. 90 (1931). In those three cases, however, the persons causing the accident were labeled as independent contractors when the work they were doing actually fell into the relationship of employee/employer. Hobbs, 203 So.2d at 490; Gulf Ref. Co., 167 Miss, at 330-31, 145 So. at 333; Kisner, 159 Miss, at 429, 132 So. at 91. In the present case, the Richardson public policy test is not applicable because Myrick undeniably was an independent contractor in his work with WLM. Unlike Hobbs, Gulf Refining Co., and Kisner, we find no confusion as to Myrick’s role as working independently of WLM as employer.

¶ 14. In an alternative argument, the appellants argue that Myrick and WLM were involved either in a relationship of principal/agent or involved in a joint venture together. We find neither of these arguments persuasive. Having conducted a de novo review of this matter, we find the court did not err in granting summary judgment, and we affirm.

¶ 15. THE JUDGMENT OF THE LEAKE COUNTY CIRCUIT COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANTS.

McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS AND MYERS, JJ., CONCUR. KING, P.J., IRVING AND CHANDLER, JJ., CONCUR IN RESULT ONLY. GRIFFIS, J., NOT PARTICIPATING.

OPINION AND ORDER

FEIKENS, District Judge.

Defendant Mobil Oil Corporation moves for summary judgment pursuant to Federal Rule of Civil Procedure 56(b). At a hearing held on June 18, 1993 I took the motion under advisement. Having considered the briefs and oral arguments, I find in favor of Mobil Oil, and dismiss Mobil Oil as a defendant in this case. Plaintiff may proceed against the remaining defendant, Montgomery Tank Lines, Inc.

Plaintiff, a tractor-trailer driver, was injured on the job when he fell from the top of the tanker trailer he used to deliver oil. The trailer was owned by defendant Montgomery Tank Lines, Inc., and leased to Mobil Oil. The tractor was owned by a third party, Jerry Rieger, and also leased to Mobil Oil. Plaintiff was hired to deliver loads of oil from Mobil Oil’s Woodhaven Lube Plant and Terminal in Woodhaven, Michigan to various Mobil Oil customers. Plaintiff’s Complaint alleges that both defendants negligently provided plaintiff with an unsafe and defective tanker, and that the tanker was not equipped with adequate safety devices.

Mobil Oil’s defense is based on the “exclusive remedy provision” of Michigan’s Worker’s Disability Compensation Act. M.C.L. § 418.131; M.S.A. § 17.237(131). It provides that “[t]he right to the recovery of benefits as provided in this act shall be the employee’s exclusive remedy against the employer.” Consequently, Mobil Oil’s motion turns on whether or not it can be considered plaintiffs employer. Plaintiff denies that Mobil Oil was his employer.

Generally, determination of an employer/employee relationship is a question of law for the judge.

Whether a company is a particular worker’s “employer,” as that term is used in the workers’ compensation act, is a question of law for the courts to decide if the evidence on the matter is reasonably susceptible of but a single inference. Nichol v. Billot, 406 Mich 284, 302-303; 279 NW2d 761 (1979) (quoting Flick v. Crouch, 434 P2d 256 [Okla, 1967]). Only where the evidence bearing on the company’s status is disputed, or where conflicting inferences may reasonably be drawn from the known facts, is the issue one for the trier of fact to decide.

Derigiotis v. J.M. Feighery Co., 185 Mich.App. 90, 94, 460 N.W.2d 235 (1990), app. den., 437 Mich. 936 (1991) (quoting Kenyon v. Second Precinct Lounge, 177 Mich.App. 492, 497, 442 N.W.2d 696 (1989)). Although plaintiffs employment situation was complex and confusing,1 the facts, when interpreted in light of Michigan precedent, are susceptible of only one inference — Mobil Oil was plaintiffs employer.

Plaintiff was initially hired by Jerry Rieger, the owner and lessor of the tractor plaintiff used to haul loads. But before Rieger would agree to hire him, plaintiff had to pass a road test administered by Mobil Oil at a Mobil Oil facility in Pennsylvania. At the time, plaintiff knew that he was being considered for work involving Mobil Oil, and that if he failed the road test he would not have a job.

Plaintiff telephoned a Mobil dispatcher at least once a day for work assignments. The dispatcher told him where to deliver oil and how much to deliver. Plaintiff also contacted Jerry Rieger on a daily basis; and submitted his paperwork — travel logs, unloading records, fuel and other expense receipts — to *1303Rieger on a weekly basis. Determination of his wages depended on these records. But plaintiffs paycheck was issued by yet another company, TLI, Inc. TLI had a contract with Mobil Oil to provide tractor-trailer drivers for Mobil Oil’s use. Mobil reimbursed the company for driver wages and other expenses, including worker’s compensation insurance premiums. However, the contract specifically disclaims the existence of an employer/employee relationship between Mobil Oil and TLI-supplied drivers. After his injury, plaintiff received worker’s compensation benefits from TLI.

Mobil Oil argues that both TLI and Mobil Oil were plaintiffs employers for purposes of the worker’s compensation laws. Renfroe v. Higgins Rack Coating & Manufacturing Co., 17 Mich.App. 259, 169 N.W.2d 326 (1969), recognized the “triangular relationship” that exists between a worker, a supplier of temporary workers (or labor broker) and a user of those workers. Renfroe concluded that both the labor broker and the end-user are employers of the worker, and therefore protected by the exclusive remedy provision. Plaintiffs situation involves a fourth player, Jerry Rieger. However, Rieger and TLI, in combination, fill the labor broker role.

Renfroe was embraced by the Michigan Supreme Court in Farrell v. Dearborn Manufacturing Co., 416 Mich. 267, 330 N.W.2d 397 (1982). The opinion describes the typical labor broker situation as follows:

The customers of a labor broker typically call in their employment needs on a daily basis, and workers are sent by the broker to fill these needs. After arriving at the place of business, the worker is subject to the control and authority of the customer and the customer’s supervisory personnel. The customer has the power to discharge the employee from the daily work assignment and can refuse to accept a worker sent by the broker. The customer does not pay the employee directly. Rather, the labor broker pays the employee and includes as part of its charge to the customer amounts to cover its expenses for compensation premiums, social security, and other taxes.

Farrell, 416 Mich. at 275-76, 330 N.W.2d 397. As in Renfroe, the Court found that workers in a labor broker situation must be considered employees of both the labor broker and the end-user. As a consequence, both are protected by the exclusive remedy provision.

The relationship between TLI and Mobil Oil does not match this description in all respects. Plaintiff was on long-term assignment to Mobil Oil, and, because of the nature of his job, was not closely supervised by Mobil Oil personnel. As a truck driver, plaintiff was unlikely to be subjected to the same close supervision often associated with factory and office work. This fact arguably decreases the closeness of the relationship between plaintiff and Mobil Oil. On the other hand, the fact that plaintiff was on long-term assignment to Mobil Oil strengthens their relationship. On balance the differences are not enough to alter the outcome.

Economic Realities Test

Michigan courts rely on the “economic realities test” to establish the existence of an employer/employee relationship. Both Renfroe and Farrell use this test. The language of a written agreement, such as the one between TLI and Mobil Oil, is not controlling. White v. Central Transport, Inc., 150 Mich.App. 128, 129, 388 N.W.2d 274, app. den., 425 Mich. 864 (1986); Tolbert v. U.S. Truck Company, 179 Mich.App. 471, 476, 446 N.W.2d 484 (1989). Furthermore, the same test is used whether asserted by the plaintiff as a sword or by the defendant as a shield. Wells v. Firestone Tire and Rubber Co., 421 Mich. 641, 651, 364 N.W.2d 670 (1984); Nichol v. Billot, 406 Mich. 284, 299, 279 N.W.2d 761 (1979).

The economic realities test includes four elements: “(1) control of a worker’s duties, (2) the payment of wages, (3) the right to hire and fire and the right to discipline, and (4) the performance of the duties as an integral part of the employer’s business towards the accomplishment of a common goal.” Askew v. Macomber, 398 Mich. 212, 217-18, 247 N.W.2d 288 (1976). No single element is controlling; the totality of the circumstances must be considered. Farrell, 416 Mich. at 276, 330 N.W.2d 397.

*1304 Control. Plaintiffs deposition indicates that he contacted a Mobil Oil dispatcher by phone on a daily basis to obtain work assignments. Those assignments involved hauling oil from Mobil-Oil’s Woodhaven processing plant and delivering it to Mobil Oil customers. The oil was generally loaded into plaintiffs tanker by Mobil Oil employees and unloaded by plaintiff. Plaintiff kept his truck at Mobil Oil’s Woodhaven facility when it was not in use, and hauled exclusively for Mobil Oil. Plaintiff also contacted Mobil Oil when the tanker needed to be washed, to complain about the tanker, and to complain about other Mobil Oil employees.

On the other hand, plaintiff was trained by an individual who appeared to be an employee of Jerry Rieger. He invariably telephoned Rieger after receiving an assignment from Mobil Oil to obtain Rieger’s approval. And on at least one occasion plaintiff refused an assignment after Rieger told him not to accept it. Plaintiff delivered his travel logs and other paperwork to Rieger. He contacted Rieger when his tractor needed servicing; and Rieger arranged for repairs.

These facts indicate that plaintiffs job duties were controlled, at least in significant part, by Mobil Oil. In Renfroe, supra, the court found that partial control is enough to establish an employer/employee relationship. Exclusive control is not required.

The economic reality of this case is that both ETS [the labor broker] and Higgins Co. [the end-user] were employers of Roy Renfroe, each in a different way. It is not necessary to make fine semantic distinctions as to types of degrees of control, et cetera. It is enough to say that either could be liable under the workmen’s compensation act, therefore, both are protected by it.

Id., 17 Mich.App. at 266-67, 169 N.W.2d 326.

Payment of Wages. Mobil Oil clearly satisfies this element of the economic realities test. The lease agreement between TLI and Mobil Oil includes the following:

LESSEE shall be liable to LESSOR for reimbursement of all wages as aforesaid and benefit payments which LESSOR has made to drivers for services rendered and at the direction of the LESSEE driver expenses approved by LESSEE.

.... LESSEE’S liability, in addition to the aforementioned amounts shall include the LESSOR’S share of F.I.C.A., Worker’s Compensation, Federal and State Unemployment and liability or bonding premiums as required.

Payment of wages in this indirect fashion was enough to establish the wages element in several Michigan cases. Tolbert v. U.S. Truck Co., supra; White v. Central Transport, Inc., supra; Farrell v. Dearborn Mfg. Co., supra; Renfroe v. Higgins Rack Coating & Mfg. Co., supra.

Right to Hire, Fire, and Discipline. Under the terms of Mobil Oil’s contract with TLI it had the right to refuse plaintiffs services. Plaintiff argues that TLI had other customers, and that if Mobil Oil refused his services, he could have worked for another customer. According to plaintiff, only TLI or Jerry Rieger had the power to completely take away his livelihood.

However, the fact remains that plaintiff was hired for a specific job. If Mobil Oil had terminated his services he would have been without an assignment, at least temporarily.2 The power to stop plaintiff from engaging in the daily tasks he relied on for wages is enough to satisfy the test.

Moreover, approval by Mobil Oil was a condition precedent to plaintiffs hiring. Plaintiff was required to pass a road test administered by Mobil at a Mobil Oil facility in Pennsylvania before Rieger agreed to hire him. Without Mobil’s approval plaintiff would have never been employed by Rieger or TLI.

Performance of Duties as an Integral part of Employer's Business. As a deliverer of Mobil Oil’s product, plaintiffs work constituted an integral part of the company’s business. Delivery is an ongoing and neces*1305sary function, not a short term or irregular project. Furthermore, although truck drivers are often independent contractors, this is not necessarily the usual or normal arrangement. Mobil Oil satisfies this element of the test as well.

In conclusion, the economic realities of the situation are that Mobil Oil was plaintiffs employer. All of the relevant factors lean heavily in Mobil Oh’s favor. Taken as a whole, there can be no doubt that Mobil Oil satisfies the test. As a consequence, Mobil Oil is protected from suit by the exclusive remedy provision of the Worker’s Disability Compensation Act. The Michigan Court of Appeals reached a similar conclusion in White, supra, and Tolbert, supra. Both of these cases involved leased truck drivers. Mobil Oil is dismissed as a defendant in this case.

Plaintiff argues with some force that Mobil Oil has effectively insulated itself from all responsibility for workers. By using a labor broker, Mobil Oil is relieved of direct responsibility for worker’s compensation insurance premiums and payment of benefits. Presumably, Mobil Oil obtains other advantages from denying the existence of an employer/employee relationship as well. On the other hand, Mobil Oil escapes the potential tort liability non-employers normally face. Justice Ryan of the Michigan Supreme Court recognized this imbalance of rights in his dissenting opinion in Farrell v. Dearborn Manufacturing Co., 416 Mich. at 286-87, 380 N.W.2d 397:

My colleague’s approach suggests that if two companies can divide the attributes of employment equally enough, both will be entitled to the “exclusive remedy” bar of the statute, even though only one set of workers’ compensation insurance premiums must be paid. In short, my colleague’s opinion advertises “two bars for the price of one”.

Moreover, from a purely policy perspective, the Court’s decision enables a company to insulate itself from the economic consequences of an unsafe workplace. It seems clear that the Legislature contemplated that either total liability or higher workers’ compensation insurance rates would provide an economic incentive for every company to care about worker safety. It now appears that the labor broker scheme my be an expedient method of avoiding either type of liability.

However, this was not the prevailing opinion. As a federal judge, I am not in a position to change the law, especially state law. Only the Michigan Legislature can address this inequity.

IT IS SO ORDERED.

CANTIL-SAKAUYE, C.J.

*5*912Under both California and federal law, the question whether an individual worker should properly be classified as an employee or, instead, as an independent contractor has considerable significance for workers, businesses, and the public generally.1 On the one **5hand, if *913a worker should properly be classified as an employee, the hiring business bears the responsibility of paying federal Social Security and payroll taxes, unemployment insurance taxes and state employment taxes, providing worker's compensation insurance, and, most relevant for the present case, complying with numerous state and federal statutes and regulations governing the wages, hours, and working conditions of employees. The worker then obtains the protection of the applicable labor laws and regulations. On the other hand, if a worker should properly be classified as an independent contractor, the business does not bear any of those costs or responsibilities, the worker obtains none of the numerous labor law benefits, and the public may be required under applicable laws to assume additional financial burdens with respect to such workers and their families.

Although in some circumstances classification as an independent contractor may be advantageous to workers as well as to businesses, the risk that workers who should be treated as employees may be improperly misclassified as independent contractors is significant in light of the potentially substantial economic incentives that a business may have in mischaracterizing some workers as independent contractors. Such incentives include the unfair *6competitive advantage the business may obtain over competitors that properly classify similar workers as employees and that thereby assume the fiscal and other responsibilities and burdens that an employer owes to its employees. In recent years, the relevant regulatory agencies of both the federal and state governments have declared that the misclassification of workers as independent contractors rather than employees is a very serious problem, depriving federal and state governments of billions of dollars in tax revenue and millions of workers of the labor law protections to which they are entitled.2

The issue in this case relates to the resolution of the employee or independent contractor question in one specific context. Here we must decide what standard applies, under California law, in determining whether workers should be classified as employees or as independent contractors for purposes of California wage orders , which impose obligations relating to the minimum *914wages, maximum hours, and a limited number of very basic working conditions (such as minimally required meal and rest breaks) of California employees.3

In the underlying lawsuit in this matter, two individual delivery drivers, suing on their own behalf and on behalf of a class of allegedly similarly situated drivers, filed a complaint against Dynamex Operations West, Inc. (Dynamex), a nationwide package and document delivery company, alleging that Dynamex had misclassified its delivery drivers as independent contractors rather than employees. The drivers claimed that Dynamex's alleged misclassification of its drivers as independent contractors led to Dynamex's violation of the provisions of Industrial Welfare Commission wage order No. 9, the applicable state wage order governing the transportation industry, as well as various sections of the Labor Code, and, as a result, that Dynamex had engaged in unfair and unlawful business practices under Business and Professions Code section 17200.

Prior to 2004, Dynamex classified as employees drivers who allegedly performed similar pickup and delivery work as the current **6drivers perform. In 2004, however, Dynamex adopted a new policy and contractual arrangement under which all drivers are considered independent contractors rather than employees. Dynamex maintains that, in light of the current contractual arrangement, the drivers are properly classified as independent contractors.

After an earlier round of litigation in which the trial court's initial order denying class certification was reversed by the Court of Appeal ( Lee v. Dynamex, Inc. (2008) 166 Cal.App.4th 1325, 83 Cal.Rptr.3d 241 ), the trial court ultimately certified a class action embodying a class of Dynamex drivers who, during a pay period, did not themselves employ other drivers *7and did not do delivery work for other delivery businesses or for the drivers' own personal customers. In finding that the relevant common legal and factual issues relating to the proper classification of the drivers as employees or as independent contractors predominated over potential individual issues, the trial court's certification order relied upon the three alternative definitions of "employ" and "employer" set forth in the applicable wage order as discussed in this court's then-recently decided opinion in Martinez v. Combs (2010) 49 Cal.4th 35, 64, 109 Cal.Rptr.3d 514, 231 P.3d 259 ( Martinez ). As described more fully below, Martinez held that "[ ]o employ ... under the [wage order], has three alternative definitions. It means: (a) to exercise control over the wages, hours, or working conditions, or (b) to suffer or *915permit to work, or (c) to engage, thereby creating a common law employment relationship." ( 49 Cal.4th at p. 64, 109 Cal.Rptr.3d 514, 231 P.3d 259.) The trial court rejected Dynamex's contention that in the wage order context, as in most other contexts, the multifactor standard set forth in this court's seminal decision in S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 256 Cal.Rptr. 543, 769 P.2d 399 ( Borello ) is the only appropriate standard under California law for distinguishing employees and independent contractors.

In response to the trial court's denial of Dynamex's subsequent motion to decertify the class, Dynamex filed the current writ proceeding in the Court of Appeal, maintaining that two of the alternative wage order definitions of "employ" relied upon by the trial court do not apply to the employee or independent contractor issue. Dynamex contended, instead, that those wage order definitions are relevant only to the distinct joint employer question that was directly presented in this court's decision in Martinez -namely whether, when a worker is an admitted employee of a primary employer, another business or entity that has some relationship with the primary employer should properly be considered a joint employer of the worker and therefore also responsible, along with the primary employer, for the obligations imposed by the wage order.

The Court of Appeal rejected Dynamex's contention, concluding that neither the provisions of the wage order itself nor this court's decision in Martinez supported the argument that the wage order's definitions of "employ" and "employer" are limited to the joint employer context and are not applicable in determining whether a worker is a covered employee, rather than an excluded independent contractor, for purposes of the obligations imposed by the wage order. The Court of Appeal concluded that the wage order definitions discussed in Martinez are applicable to the employee or independent contractor question with respect to obligations arising out of the wage order. The Court of Appeal upheld the trial court's class certification order with respect to all of plaintiffs' claims that are based on alleged violations of the wage order.

At the same time, the Court of Appeal concluded that insofar as the causes of action in the complaint seek reimbursement for business expenses such as fuel and tolls that are not governed by the wage order and are obtainable only under section 2802 of the Labor Code,4 the Borello standard is the applicable standard for determining whether a worker is properly considered an employee or an independent contractor. With respect to plaintiffs' non-wage-order claim under section 2802, the Court of Appeal remanded the matter to *8the trial court to reconsider its **7class certification of that claim pursuant to a proper application of the Borello standard as further explicated in this court's *916decision in Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522, 173 Cal.Rptr.3d 332, 327 P.3d 165 ( Ayala ).

Dynamex filed a petition for review in this court, challenging only the Court of Appeal's conclusion that the wage order definitions of "employ" and "employer" discussed in Martinez are applicable to the question whether a worker is properly considered an employee or an independent contractor for purposes of the obligations imposed by an applicable wage order. We granted review to consider that issue.5

For the reasons discussed below, we agree with the Court of Appeal that the trial court did not err in concluding that the "suffer or permit to work" definition of "employ" contained in the wage order may be relied upon in evaluating whether a worker is an employee or, instead, an independent contractor for purposes of the obligations imposed by the wage order. As explained, in light of its history and purpose, we conclude that the wage order's suffer or permit to work definition must be interpreted broadly to treat as "employees," and thereby provide the wage order's protection to, all workers who would ordinarily be viewed as working in the hiring business . At the same time, we conclude that the suffer or permit to work definition is a term of art that cannot be interpreted literally in a manner that would encompass within the employee category the type of individual workers, like independent plumbers or electricians, who have traditionally been viewed as genuine independent contractors who are working only in their own independent business.

For the reasons explained hereafter, we conclude that in determining whether, under the suffer or permit to work definition, a worker is properly considered the type of independent contractor to whom the wage order does not apply, it is appropriate to look to a standard, commonly referred to as the "ABC" test, that is utilized in other jurisdictions in a variety of contexts to distinguish employees from independent contractors. Under this test, a worker is properly considered an independent contractor to whom a wage order does not apply only if the hiring entity establishes: (A) that the worker is free from the control and direction of the hirer in connection with the performance of *917the work, both under the contract for the performance of such work and in fact; (B) that the worker performs work that is outside the usual course of the hiring entity's business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.

Although, as we shall see, it appears from the class certification order that the trial court may have interpreted the wage order's suffer or permit to work standard too literally, we conclude that on the facts *9disclosed by the record, the trial court's certification order is nonetheless correct as a matter of law under a proper understanding of the suffer or permit to work standard and should be upheld.

Accordingly, we conclude that the judgment of the Court of Appeal should be affirmed.

I. FACTS AND PROCEEDINGS BELOW

We summarize the facts as set forth in the prior Court of Appeal opinions in this matter, supplemented by additional facts set forth in the record.

**8Dynamex is a nationwide same-day courier and delivery service that operates a number of business centers in California. Dynamex offers on-demand, same-day pickup and delivery services to the public generally and also has a number of large business customers-including Office Depot and Home Depot-for whom it delivers purchased goods and picks up returns on a regular basis. Prior to 2004, Dynamex classified its California drivers as employees and compensated them pursuant to this state's wage and hour laws. In 2004, Dynamex converted all of its drivers to independent contractors after management concluded that such a conversion would generate economic savings for the company. Under the current policy, all drivers are treated as independent contractors and are required to provide their own vehicles and pay for all of their transportation expenses, including fuel, tolls, vehicle maintenance, and vehicle liability insurance, as well as all taxes and workers' compensation insurance.

Dynamex obtains its own customers and sets the rates to be charged to those customers for its delivery services. It also negotiates the amount to be paid to drivers on an individual basis. For drivers who are assigned to a dedicated fleet or scheduled route by Dynamex, drivers are paid either a flat fee or an amount based on a percentage of the delivery fee Dynamex receives from the customer. For those who deliver on-demand, drivers are generally paid either a percentage of the delivery fee paid by the customer on a per delivery basis or a flat fee basis per item delivered.

*918Drivers are generally free to set their own schedule but must notify Dynamex of the days they intend to work for Dynamex. Drivers performing on-demand work are required to obtain and pay for a Nextel cellular telephone through which the drivers maintain contact with Dynamex. On-demand drivers are assigned deliveries by Dynamex dispatchers at Dynamex's sole discretion; drivers have no guarantee of the number or type of deliveries they will be offered. Although drivers are not required to make all of the deliveries they are assigned, they must promptly notify Dynamex if they intend to reject an offered delivery so that Dynamex can quickly contact another driver; drivers are liable for any loss Dynamex incurs if they fail to do so. Drivers make pickups and deliveries using their own vehicles, but are generally expected to wear Dynamex shirts and badges when making deliveries for Dynamex, and, pursuant to Dynamex's agreement with some customers, drivers are sometimes required to attach Dynamex and/or the customer's decals to their vehicles when making deliveries for the customer. Drivers purchase Dynamex shirts and other Dynamex items with their own funds.6

*10In the absence of any special arrangement between Dynamex and a customer, drivers are generally free to choose the sequence in which they will make deliveries and the routes they will take, but are required to complete all assigned deliveries on the day of assignment. If a customer requests, however, drivers must comply with a customer's requirements regarding delivery times and sequence of stops.

Drivers hired by Dynamex are permitted to hire other persons to make deliveries assigned by Dynamex. Further, when they are not making pickups or deliveries for Dynamex, drivers are permitted to make deliveries for another delivery company, including the driver's own personal delivery business. Drivers are prohibited, however, from diverting any delivery order received through or on behalf of Dynamex to a competitive delivery service.

Drivers are ordinarily hired for an indefinite period of time but Dynamex retains the authority to terminate its agreement with any driver without cause, on three days' notice. And, as noted, Dynamex reserves the right, throughout the contract period, to control the number and nature of deliveries that it offers to its on-demand drivers.

**9In January 2005, Charles Lee-the sole named plaintiff in the original complaint in the underlying action-entered into a written independent contractor agreement with Dynamex to provide delivery services for Dynamex.

*919According to Dynamex, Lee performed on-demand delivery services for Dynamex for a total of 15 days and never performed delivery service for any company other than Dynamex. On April 15, 2005, three months after leaving his work at Dynamex, Lee filed this lawsuit on his own behalf and on behalf of similarly situated Dynamex drivers.

In essence, the underlying action rests on the claim that, since December 2004, Dynamex drivers have performed essentially the same tasks in the same manner as when its drivers were classified as employees, but Dynamex has improperly failed to comply with the requirements imposed by the Labor Code and wage orders for employees with respect to such drivers. The complaint alleges five causes of action arising from Dynamex's alleged misclassification of employees as independent contractors: two counts of unfair and unlawful business practices in violation of Business and Professions Code section 17200, and three counts of Labor Code violations based on Dynamex's failure to pay overtime compensation, to properly provide itemized wage statements, and to compensate the drivers for business expenses.

The trial court's initial order denying class certification was reversed by the Court of Appeal based on the trial court's failure to compel Dynamex to provide contact information for potential putative class members that would enable plaintiffs to establish the necessary elements for class certification. (See Lee v. Dynamex , supra , 166 Cal.App.4th 1325, 1336-1338, 83 Cal.Rptr.3d 241.) After the trial court permitted plaintiffs to file a first amended complaint adding Pedro Chevez (a former Dynamex dedicated fleet driver) as a second named plaintiff and the parties stipulated to the filing of a second amended complaint (the current operative complaint ), the parties agreed to send questionnaires to all putative class members seeking information that would be relevant to potential class membership.

Based on the responses on the questionnaires that were returned by current or former Dynamex drivers, plaintiffs moved for certification of a revised class of Dynamex drivers. As ultimately modified by the trial court, the proposed class includes those individuals (1) who were classified as *11independent contractors and performed pickup or delivery service for Dynamex between April 15, 2001 and the date of the certification order, (2) who used their personally owned or leased vehicles weighing less than 26,000 pounds, and (3) who had returned questionnaires which the court deemed timely and complete. The proposed class explicitly excluded, however, drivers for any pay period in which the driver had provided services to Dynamex either as an employee or subcontractor of another person or entity or through the driver's own employees or subcontractors (except for substitute drivers who provided services during vacation, illness, or other time off). Also excluded were drivers who provided services concurrently for Dynamex and for another *920delivery company that did not have a relationship with Dynamex or for the driver's own personal delivery customers. Thus, as narrowed by these exclusions, the class consisted only of individual Dynamex drivers who had returned complete and timely questionnaires and who personally performed delivery services for Dynamex but did not employ other drivers or perform delivery services for another delivery company or for the driver's own delivery business. The trial court's certification order states that 278 drivers returned questionnaires and that from the questionnaire responses it appears that at least 184 drivers fall within the proposed class.

On May 11, 2011, the trial court, in a 26-page order, granted plaintiffs' motion for class certification. The validity of that order is at issue in the present proceeding.

After determining that the proposed class satisfied the prerequisites of ascertainability, numerosity, typicality, and adequacy of class representatives and counsel required for class certification, the trial court turned to the question of commonality-that is, whether common issues predominate over individual **10issues. Because of its significance to our subsequent legal analysis, we discuss this aspect of the trial court's certification order in some detail.

The trial court began its discussion of the commonality requirement by observing that " '[ ]he ultimate question in every [purported class action] is whether, given an ascertainable class, the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants.' " The court noted that in examining whether common issues of law or fact predominate, a court must consider the legal theory on which plaintiffs' claim is based and the relevant facts that bear on that legal theory. The court explained that in this case all of plaintiffs' causes of action rest on the contention that Dynamex misclassified the drivers as independent contractors when they should have been classified as employees. Thus, the facts that are relevant to that legal claim necessarily relate to the appropriate legal standard or test that is applicable in determining whether a worker should be considered an employee or an independent contractor.

The court then explained that the parties disagreed as to the proper legal standard that is applicable in determining whether a worker is an employee or an independent contractor for purposes of plaintiffs' claims. Plaintiffs relied on this court's then-recent decision in Martinez , supra , 49 Cal.4th 35, 109 Cal.Rptr.3d 514, 231 P.3d 259, maintaining that the standards or tests for employment set forth in Martinez are applicable in the present context, and that the standard for determining the employee or independent contractor question set forth in this court's decision in Borello , supra , 48 Cal.3d 341, 256 Cal.Rptr. 543, 769 P.2d 399 is not the *12sole applicable standard. Dynamex, by contrast, took the position that the alternative definitions of *921"employ" and "employer" discussed in Martinez are applicable only in determining whether an entity that has a relationship with the primary employer of an admitted employee should be considered a joint employer of the employee, and not in deciding whether a worker is properly classified as an employee or an independent contractor. Dynamex asserted that even with respect to claims arising out of the obligations imposed by a wage order, the question of a worker's status as an employee or independent contractor must be decided solely by reference to the Borello standard.

In its certification order, the trial court agreed with plaintiffs' position, relying on the fact that the Martinez decision "did not indicate that its analysis was in any way limited to situations involving questions of joint employment." The court found that the Martinez decision represents "a redefinition of the employment relationship under a claim of unpaid wages as follows: 'To employ, then, under the IWC's [Industrial Welfare Commission's] definition, has three alternative definitions. It means (a) to exercise control over the wages, hours or working conditions, (b) to suffer or permit to work, or (c) to engage, thereby creating a common law employment relationship.' " (Quoting Martinez , supra , 49 Cal.4th at p. 64, 109 Cal.Rptr.3d 514, 231 P.3d 259.) The trial court concluded that "[ ]hese definitions must be considered when analyzing whether the class members are employees or independent contractors" and thereafter proceeded to discuss separately each of the three definitions or standards set forth in Martinez in determining whether common issues predominate for purposes of class certification.

With regard to the "exercise control over wages, hours or working conditions" test, the trial court stated that " 'control over wages' means that a person or entity has the power or authority to negotiate and set an employee's rate of pay" and that "[w]hether or not Dynamex had the authority to negotiate each driver's rate of pay can be answered by looking at its policies with regard to hiring drivers. ... [I]ndividual inquiry is not required to determine whether Dynamex exercises control over drivers' wages."

With regard to the suffer or permit to work test, the trial court stated in full: "An employee is suffered or permitted to work if the work was performed with the knowledge of the employer. [Citation.] This includes work that was performed that the employer **11knew or should have known about. [Citation.] Again, this is a matter that can be addressed by looking at Defendant's policy for entering into agreement with drivers. Defendant is only liable to those drivers with whom it entered into an agreement (i.e., knew were providing delivery services to Dynamex customers). This can be determined through records, and does not require individual analysis."

With regard to the common law employment relationship test referred to in Martinez , the trial court stated that this test refers to the multifactor standard *922set forth in Borello , supra , 48 Cal.3d 341, 256 Cal.Rptr. 543, 769 P.2d 399. The trial court described the Borello test as involving the principal factor of " 'whether the person to whom services is rendered has the right to control the manner and means of accomplishing the result desired' " as well as the following nine additional factors: "(1) right to discharge at will, without cause; (2) whether the one performing the services is engaged in a distinct occupation or business; (3) the kind of occupation, with reference to whether in the locality the work *13is usually done under the direction of the principal or by a specialist without supervision; (4) the skill required in the particular occupation; (5) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work; (6) the length of time for which the services are to be performed; (7) method of payment, whether by the time or by the job; (8) whether or not the work is part of the regular business of the principal; and (9) whether or not the parties believe they are creating the relationship of employer-employee." As the trial court observed, Borello explained that " 'the individual factors cannot be applied mechanically as separate tests; they are intertwined and their weight depends often on particular combinations.' " ( Borello , supra , 48 Cal.3d at p. 351, 256 Cal.Rptr. 543, 769 P.2d 399.)

The trial court then discussed the various Borello factors, beginning with whether the hiring business has the right to control work details. In analyzing this factor, the court stated: "A determination of control of the work details must look to 'all meaningful aspects of the business relationship.' [Citation.] For a delivery service, those aspects include obtaining customer/customer service, prices charged for delivery, routes, delivery schedules and billing. Plaintiffs contend that these factors are all controlled by Dynamex because it obtains the customers, maintains a centralized call system, maintains a package tracking system, sets the prices for its services and customers are billed by Dynamex. This is not necessarily borne out by the evidence. Defendants' [supervising officer], Mr. Pople,7 testified that the drivers solicit new customers. [Citation.] There is also evidence that customer service is handled by some of the drivers, depending on the customer's relationship to that driver. [Citation.] Finally, defendant does not necessarily control the drivers' delivery schedules, as a number of drivers state that their only obligation is to complete the deliveries by the end of the business day. [Citation.] The degree to which Dynamex controls the details of the work varies according to different circumstances, including the particular driver or customer that is involved. Determining whether Dynamex controls the details of the business, therefore, does not appear susceptible to common proof."

*923With regard to the right to discharge factor, the trial court stated: "[T]he right to discharge at will, without cause, is an important consideration. Defendant's [supervising officer] testified that Dynamex maintains the right to discharge the drivers at will. [Citation.] This does not appear to vary from driver to driver. So it is a classwide factor, which is particularly relevant to demonstrating the existence of an employer-employee relationship."

With regard to the "distinct occupation or business" factor, the trial court stated: "A distinct business relates to whether the drivers have the opportunity for profit and loss. [Citation.] Plaintiffs contend that the drivers have no opportunity for profit or loss because **12they are charged according to standardized rate tables. This may be a misrepresentation of defendants' evidence. Defendant['s supervising officer] testified that it tries to standardize the rates paid to on-demand drivers, however, drivers enter into different compensation arrangements. [Citations.] The opportunity for profit or loss depends on the nature of the agreement negotiated between Dynamex and the particular driver. Each arrangement *14would have to be reviewed to determine the extent of the driver's opportunity for profit and loss."

With regard to the "who supplies instrumentalities" factor, the court stated: "Defendant admitted that the drivers had to provide the instrumentalities of their work and that this was a classwide policy. This factor is subject to common inquiry."

With regard to the duration of service factor, the court stated: "Defendants concede that the drivers are at-will. [This] [f]actor is also subject to common inquiry."

With regard to the method of payment factor, the court stated: "Defendants identify different payment scenarios: (a) percentage of the fee Dynamex charges its customer for each delivery performed; (b) flat rate per day, regardless of the number of packages delivered; (c) set amount per package, regardless of the size or type of package; (d ) flat fee to be available to provide delivery service regardless of whether the Driver's services are used; or (e) a combination of these payment types. [Citation.] These factors vary from driver to driver and raise individualized questions."

Finally, with regard to the "parties' belief regarding the nature of relationship" factor, the court noted that "this factor is given less weight by courts" and stated "[a]ll the drivers signed agreements stating that they were independent contractors. The drivers' belief could reasonably be demonstrated through this classwide agreement."

The court then summarized its conclusion with regard to the Borello standard: "Thus, most of the secondary factors are subject to common proof *924and do not require individualized inquiry of the class members. But the main factor in determining whether an employment agreement exists-control of the details-does require individualized inquiries due to the fact that there is no indication of a classwide policy that only defendants obtain new customers, only the defendants provide customer service and create the delivery schedules."

With respect to the entire question of commonality, however, the trial court concluded: "Common questions predominate the inquiry into whether an employment relationship exists between Dynamex and the drivers. The first two alternative definitions of 'employer' can both be demonstrated through common proof, even if the common law test requires individualized inquiries."

Having found that common issues predominate, the trial court went on to conclude that "[a] class action is a superior means of conducting this litigation." The court stated in this regard: "Given that there is evidence from Plaintiffs that common questions predominate the inquiry into [the] employment relationship[,] managing this as a class action with respect to those claims will be feasible. There appears to be no litigation by individual class members, indicating that they have little interest in personally controlling their claims. Finally, consolidating all the claims before a single court would be desirable since it would allow for consistent rulings with respect to all the class members' claims."

On the basis of its foregoing determinations, the trial court granted plaintiffs' motion for class certification.

In December 2012, Dynamex renewed its motion to decertify the class action that the trial court had certified in May 2011. Dynamex relied upon intervening Court of Appeal decisions assertedly demonstrating that the trial court had erred in relying upon the wage order's alternative definitions of employment, as set forth in Martinez . The trial court denied the renewed motion to decertify the class.

*15In June 2013, Dynamex filed a petition for writ of mandate in the Court of Appeal, challenging the trial court's denial of its motion to decertify the class. In response, plaintiffs, while disagreeing with Dynamex's claim that the trial court had erred, urged the **13Court of Appeal to issue an order to show cause and resolve the issues presented in the writ proceeding. The Court of Appeal issued an order to show cause in order to determine whether the trial court erred in certifying the underlying class action under the wage order definitions of "employ" and "employer" discussed in Martinez .

After briefing and argument, the Court of Appeal denied the petition in part and granted the petition in part. The appellate court concluded that the trial *925court properly relied on the alternative definitions of the employment relationship set forth in the wage order when assessing those claims in the complaint that fall within the scope of the applicable wage order, and it denied the writ petition with respect to those claims. With respect to those claims that fall outside the scope of the applicable wage order, however, the Court of Appeal concluded that the Borello standard applied in determining whether a worker is an employee or an independent contractor, and it granted the writ to permit the trial court to reevaluate its class certification order in light of this court's intervening decision in Ayala , supra , 59 Cal.4th 522, 173 Cal.Rptr.3d 332, 327 P.3d 165, which clarified the proper application of the Borello standard.

As already noted, Dynamex's petition for review challenged only the Court of Appeal's conclusion that the trial court properly determined that the wage order's definitions of "employ" and "employer" may be relied upon in determining whether a worker is an employee or an independent contractor for purposes of the obligations imposed by the wage order. We granted the petition for review to consider that question.

II. RELEVANT WAGE ORDER PROVISIONS

We begin with a brief review of the relevant provisions of the wage order that applies to the transportation industry. (See Cal. Code Regs., tit. 8, § 11090.)

In describing its scope, the transportation wage order initially provides in subdivision 1: "This order shall apply to all persons employed in the transportation industry, whether paid on a time, piece rate, commission, or other basis," except for persons employed in administrative, executive, or professional capacities, who are exempt from most of the wage order's provisions. ( Cal. Code Regs., tit. 8, § 11090, subd. 1.)8

*926Subdivision 2 of the order, which sets forth the definitions of terms as used in *16the order, contains the following relevant definitions:

"(D) 'Employ' means to engage, suffer, or permit to work.

"(E) 'Employee' means any person employed by an employer.

"(F) 'Employer' means any person as defined in Section 18 of the Labor Code, who directly or indirectly, or through an agent or any other person, employs or exercises control over the wages, hours, or working conditions of any person." ( Cal. Code Regs., tit. 8, § 11090, subd. 2(D)-(F).)9

**14Thereafter, the additional substantive provisions of the wage order that establish protections for workers or impose obligations on hiring entities relating to minimum wages, maximum hours, and specified basic working conditions (such as meal and rest breaks) are, by their terms, made applicable to "employees" or "employers." (See, e.g., Cal. Code Regs., tit. 8, § 11090, subds. 3 [Hours and Days of Work], 4 [Minimum Wages], 7 [Records], 11 [Meal Periods], 12 [Rest Periods].)

Subdivision 2 of the wage order does not contain a definition of the term "independent contractor," and the wage order contains no other provision that otherwise specifically addresses the potential distinction between workers who are employees covered by the terms of the wage order and workers who are independent contractors who are not entitled to the protections afforded by the wage order.

*927III. BACKGROUND OF RELEVANT CALIFORNIA JUDICIAL DECISIONS

We next summarize the most relevant California judicial decisions, providing a historical review of the treatment of the employee or independent contractor distinction under California law.

The difficulty that courts in all jurisdictions have experienced in devising an acceptable general test or standard that properly distinguishes employees from independent contractors is well documented. As the United States Supreme Court observed in Board v. Hearst Publications (1944) 322 U.S. 111, 121, 64 S.Ct. 851, 88 L.Ed. 1170 : "Few problems in the law have given greater variety of application and conflict in results than the cases arising in the borderland between what is clearly an employer-employee relationship and what is clearly one of independent, entrepreneurial dealing. This is true within the limited field of determining vicarious liability in tort. It becomes more so when the field is expanded to include all of the possible applications of the distinction." (Fn. omitted.)

*17As the above quotation suggests, at common law the problem of determining whether a worker should be classified as an employee or an independent contractor initially arose in the tort context-in deciding whether the hirer of the worker should be held vicariously liable for an injury that resulted from the worker's actions. In the vicarious liability context, the hirer's right to supervise and control the details of the worker's actions was reasonably viewed as crucial, because " '[ ]he extent to which the employer had a right to control [the details of the service] activities was ... highly relevant to the question whether the employer ought to be legally liable for them ....' " ( Borello , supra , 48 Cal.3d 341, 350, 256 Cal.Rptr. 543, 769 P.2d 399.) For this reason, the question whether the hirer controlled the details of the worker's activities became the primary common law standard for determining whether a worker was considered to be an employee or an independent contractor.

A. Pre-Borello Decisions

Prior to this court's 1989 decision in Borello , supra , 48 Cal.3d 341, 256 Cal.Rptr. 543, 769 P.2d 399, California decisions generally invoked this common law "control of details" standard beyond the tort context, even when deciding whether workers should be considered employees or independent contractors for purposes of the variety of 20th century social welfare legislation that had been enacted for the protection of employees. Thus, for example, in Tieberg v. Unemployment Ins. App. Bd. (1970) 2 Cal.3d 943, 946, 88 Cal.Rptr. 175, 471 P.2d 975 ( Tieberg ), in determining whether a worker was an employee or independent contractor for purposes of California's unemployment insurance legislation, *928the court stated that "[ ]he principal test of an employment relationship is whether the **15person to whom service is rendered has the right to control the manner and means of accomplishing the result desired." (See also Isenberg v. California Emp. Stab. Com. (1947) 30 Cal.2d 34, 39, 180 P.2d 11 ( Isenberg ); Perguica v. Ind. Acc. Com. (1947) 29 Cal.2d 857, 859-861, 179 P.2d 812 ( Perguica ); Empire Star Mines Co. v. Cal. Emp. Com. (1946) 28 Cal.2d 33, 43, 168 P.2d 686 (Empire Star Mines ).)

In addition to relying upon the control of details test, however, the pre- Borello decisions listed a number of "secondary" factors that could properly be considered in determining whether a worker was an employee or an independent contractor. The decisions declared that a hirer's right to discharge a worker "at will, without cause" constitutes " '[s]trong evidence in support of an employment relationship.' " ( Tieberg , supra , 2 Cal.3d at p. 949, 88 Cal.Rptr. 175, 471 P.2d 975, quoting Empire Star Mines , supra , 28 Cal.2d at p. 43, 168 P.2d 686.) The decisions also pointed to the following additional factors, derived principally from section 220 of the Restatement Second of Agency: "(a) whether or not the one performing services is engaged in a distinct occupation or business; (b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (c) the skill required in the particular occupation; (d ) whether the principal or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work; (e) the length of time for which the services are to be performed; (f) the method of payment, whether by the time or by the job; (g) whether or not the work is a part of the regular business of the principal; and (h) whether or not the parties believe they are creating the relationship of employer-employee." ( Empire Star Mines , supra , 28 Cal.2d at pp. 43-44, 168 P.2d 686 ; see also *18Tieberg , supra , 2 Cal.3d at p. 949, 88 Cal.Rptr. 175, 471 P.2d 975 ; Isenberg , supra , 30 Cal.2d at p. 39, 180 P.2d 11 ; Perguica , supra , 29 Cal.2d at p. 860, 179 P.2d 812.)

Applying the control of details test and these secondary factors to the differing facts presented by each of the cases, this court found the workers in question to be employees in Tieberg , supra , 2 Cal.3d at pages 949-955, 88 Cal.Rptr. 175, 471 P.2d 975 [television writers] and Isenberg , supra , 30 Cal.2d at pages 39-41, 180 P.2d 11 [horse racing jockeys], and independent contractors in Perguica , supra , 29 Cal.2d at pages 860-862, 179 P.2d 812 [lather hired by farmer to work on newly constructed house] and Empire Star Mines , supra , 28 Cal.2d at pages 44-46, 168 P.2d 686 [lessees of remote mining shaft ]. (See also Tomlin v. California Emp. Com. (1947) 30 Cal.2d 118, 123, 180 P.2d 342 [lessees who placed and serviced vending machines held to be employees]; Twentieth etc. Lites v. Cal. Dept. Emp. (1946) 28 Cal.2d 56, 57-60, 168 P.2d 699 [outside salesmen of advertising signs who were free to work for competitors held to be employees]; Cal. Emp. Com. v. L.A. etc. News Corp. (1944) 24 Cal.2d 421, 424-425, 150 P.2d 186 [deliverers of advertising circular held to be employees].)

*929B. Borello

In 1989, in Borello , supra , 48 Cal.3d 341, 256 Cal.Rptr. 543, 769 P.2d 399, this court addressed the employee or independent contractor question in an opinion that has come to be viewed as the seminal California decision on this subject. Because of the significance of this decision, we review the majority opinion in Borello at length.

The particular controversy in Borello , supra , 48 Cal.3d 341, 256 Cal.Rptr. 543, 769 P.2d 399, concerned whether farmworkers hired by a grower to harvest cucumbers under a written "sharefarmer" agreement were independent contractors or employees for purposes of the California workers' compensation statutes. The grower contended that the farmworkers were independent contractors under the control of details test because the workers (1) were free to manage their own labor (the grower did not supervise the picking at all but compensated the workers based on the amount of cucumbers that they harvested ), (2) shared the profit or loss from the crop, and (3) agreed in writing that they were not employees.

In rejecting the grower's contentions, the court in Borello summarized its conclusion in **16the introduction of the opinion as follows: "The grower controls the agricultural operations on its premises from planting to sale of the crops. It simply chooses to accomplish one integrated step in the production of one such crop by means of worker incentives rather than direct supervision. It thereby retains all necessary control over a job which can be done only one way. [¶] Moreover, so far as the record discloses, the harvesters' work, though seasonal by nature, follows the usual line of an employee. In no practical sense are the 'sharefarmers' entrepreneurs, operating independent businesses for their own accounts; they and their families are obvious members of the broad class to which workers' compensation protection is intended to apply." ( Borello , supra , 48 Cal.3d at p. 345, 256 Cal.Rptr. 543, 769 P.2d 399.) On this basis, the court concluded the workers were employees entitled to workers' compensation as a matter of law. ( Id. at p. 346, 256 Cal.Rptr. 543, 769 P.2d 399.)

In reaching these conclusions, the legal analysis employed by the Borello court is of particular significance. The court began by recognizing that "[ ]he distinction between independent contractors and employees arose at common law to limit one's *19vicarious liability for the misconduct of a person rendering service to him" ( Borello , supra , 48 Cal.3d at p. 350, 256 Cal.Rptr. 543, 769 P.2d 399 ), and that it was in this context that "the 'control of details' test became the principal measure of the servant's status for common law purposes." ( Ibid . ) The court then took note of the prior California decisions discussed above, which generally utilized the common law control-of-details standard in determining whether workers were employees or independent contractors for purposes of social welfare legislation, but which also identified the numerous additional "secondary" factors *930listed above that may be relevant to that determination. ( Id. at pp. 350-351, 256 Cal.Rptr. 543, 769 P.2d 399.) The court observed that " 'the individual factors cannot be applied mechanically as separate tests; they are intertwined and their weight depends often on particular combinations.' [Citation.]" ( Id . at p. 351, 256 Cal.Rptr. 543, 769 P.2d 399.)

Crucially, the court in Borello then went on to explain further that "the concept of 'employment' embodied in the [workers' compensation act ] is not inherently limited by common law principles . We have acknowledged that the Act's definition of the employment relationship must be construed with particular reference to the 'history and fundamental purposes' of the statute . [Citation.]" ( Borello , supra , 48 Cal.3d at p. 351, 256 Cal.Rptr. 543, 769 P.2d 399, italics added.) The court observed that "[ ]he common law and statutory purposes of the distinction between 'employees' and 'independent contractors' are substantially different" ( id. at p. 352, 256 Cal.Rptr. 543, 769 P.2d 399 ), that "[f]ederal courts have long recognized that the distinction between tort policy and social-legislation policy justifies departures from common law principles when claims arise that one is excluded as an independent contractor from a statute protecting 'employees' " ( ibid. ), and that "[a] number of state courts have agreed that in worker's compensation cases, the employee-independent contractor issue cannot be decided absent consideration of the remedial statutory purpose." ( Id. at pp. 352-353, 256 Cal.Rptr. 543, 769 P.2d 399.) The court in Borello agreed with this focus on statutory purpose: "[U]nder the Act, the 'control-of-work-details' test for determining whether the person rendering service to another is an 'employee' or an excluded 'independent contractor' must be applied with deference to the purposes of the protective legislation. The nature of the work, and the overall arrangement between the parties, must be examined to determine whether they come within the 'history and fundamental purposes' of the statute. " ( Id. at pp. 353-354, 256 Cal.Rptr. 543, 769 P.2d 399, italics added.)

After identifying the various purposes of the workers' compensation act,10 the court **17concluded: "The Act intends comprehensive coverage of injuries in employment. It accomplishes this goal by defining 'employment' broadly in terms of 'service to an employer' and by including a general presumption that any person 'in service to another' is a covered 'employee.' " ( Borello , supra , 48 Cal.3d at p. 354, 256 Cal.Rptr. 543, 769 P.2d 399.) At the same time, the court acknowledged that "[ ]he express exclusion *20of 'independent contractors' [from the workers' compensation act (see Lab. Code, §§ 3353, 3357 ) ] is purposeful ... and has a limited but important function. It recognizes those situations where the Act's goals are best served by imposing the risk of 'no-fault' work injuries directly on the *931provider, rather than the recipient, of a compensated service. This is obviously the case, for example, when the provider of service has the primary power over work safety, is best situated to distribute the risk and cost of injury as an expense of his own business, and has independently chosen the burdens and benefits of self-employment." ( Ibid. ) The court concluded: "This is the balance to be struck when deciding whether a worker is an employee or an independent contractor for purposes of the Act." ( Ibid . )

Although the Borello opinion emphasized that resolution of the employee or independent contractor question must properly proceed in a manner that accords deference to the history and fundamental purposes of the remedial statute in question ( Borello , supra , 48 Cal.3d at pp. 353-354, 256 Cal.Rptr. 543, 769 P.2d 399 ), the court at the same time made clear that it was not adopting "detailed new standards for examination of the issue." ( Id. at p. 354, 256 Cal.Rptr. 543, 769 P.2d 399.) The court explained in this regard that "the Restatement guidelines heretofore approved in our state remain a useful reference. The standards set forth for contractor's licensees in [Labor Code] section 2750.5... are also a helpful means of identifying the employee/contractor distinction.^[11 ^] The relevant *21considerations may often *932overlap those pertinent under the common law. [Citation.] Each service arrangement must be evaluated on its facts, and the dispositive circumstances **18may vary from case to case." ( Borello , supra , 48 Cal.3d at p. 354, 256 Cal.Rptr. 543, 769 P.2d 399.)

The Borello court also took note of "the six-factor test developed by other jurisdictions which determine independent contractorship in light of the remedial purposes of the legislation." ( Borello , supra , 48 Cal.3d at p. 354, 256 Cal.Rptr. 543, 769 P.2d 399.)12 The court observed the similarity of many of those guidelines to the ones identified in prior California decisions, and stated that "all [of those factors] are logically pertinent to the inherently difficult determination whether a provider of service is an employee or an excluded independent contractor for purposes of workers' compensation law." ( Borello , supra , 48 Cal.3d at p. 355, 256 Cal.Rptr. 543, 769 P.2d 399.)

In sum, the Borello court concluded that in determining whether a worker should properly be classified as a covered employee or an excluded independent contractor with deference to the purposes and intended reach of the remedial statute at issue, it is permissible to consider all of the various factors set forth in prior California cases, in Labor Code section 2750.5, and in the out-of-state cases adopting the six-factor test.

The Borello court then turned to the question whether, applying the appropriate legal analysis, the cucumber harvesters at issue in that case were properly considered employees or independent contractors. The court concluded that "[b]y any applicable test" the farmworkers were employees as a matter of law . ( Borello , supra , 48 Cal.3d at p. 355, 256 Cal.Rptr. 543, 769 P.2d 399 ; id. at p. 360, 256 Cal.Rptr. 543, 769 P.2d 399.)

In reaching this conclusion, the court first rejected the grower's contention that the control of details factor weighed against a finding of employment because the grower had contracted with the workers only for a "specified result" and retained no interest or control over the details of the harvesters' actual work. ( Borello , supra , 48 Cal.3d at p. 356, 256 Cal.Rptr. 543, 769 P.2d 399.) In explaining its rejection, the court began by emphasizing that "Borello, whose business is the production and sale of agricultural crops, exercises 'pervasive control over the operation as a whole.' [Citation.]" ( Ibid. ) The court observed in this regard: "Borello owns and cultivates the land for its own account. Without any participation by the sharefarmers, Borello decides to grow cucumbers, obtains a sale price formula from the only available buyer, plants the crop, and *933cultivates it throughout most of its growing cycle. The harvest takes place on Borello's premises, at a time determined by the crop's maturity. During the harvest itself, Borello supplies the sorting bins and boxes, removes the harvest from the field, transports it to market, sells it, maintains documentation on the workers' proceeds, and hands out their checks. Thus, '[a]ll meaningful aspects of this business relationship: price, crop cultivation, fertilization *22and insect prevention, payment, [and ] right to deal with buyers ... are controlled by [Borello].' [Citation.]" ( Ibid ., fns. omitted.)

Further, the court observed that "contrary to the growers' assertions, the cucumber harvest involves simple manual labor which can be performed in only one correct way. Harvest and plant-care methods can be learned quickly. While the work requires stamina and patience, it involves no peculiar skill beyond that expected of any employee. [Citations.] It is the simplicity of the work, not the harvesters' superior expertise, which makes detailed supervision and discipline unnecessary. Diligence and quality control are achieved by the payment system, essentially a variation of the piecework formula familiar to agricultural employment." ( Borello , supra , 48 Cal.3d at pp. 356-357, 256 Cal.Rptr. 543, 769 P.2d 399.)

Thus, with respect to the control of details factor, the court concluded: "Under these **19circumstances, Borello retains all necessary control over the harvest portion of its operations. A business entity may not avoid its statutory obligations by carving up its production process into minute steps, then asserting it lacks 'control' over the exact means by which one such step is performed by the responsible workers." ( Borello , supra , 48 Cal.3d at p. 357, 256 Cal.Rptr. 543, 769 P.2d 399.)

The Borello court then proceeded to discuss other factors that it found supported the classification of harvesters as employees. First, the court noted that "[ ]he harvesters form a regular and integrated portion of Borello's business operation. Their work, though seasonal in nature, is 'permanent' in the agricultural process. Indeed, Richard Borello testified that he has a permanent relationship with the individual harvesters, in that many of the migrant families return year after year. This permanent integration of the workers into the heart of Borello's business is a strong indicator that Borello functions as an employer under the Act. [Citations.]" ( Borello , supra , 48 Cal.3d at p. 357, 256 Cal.Rptr. 543, 769 P.2d 399.)13

*934The court next found that "the sharefarmers and their families exhibit no characteristics which might place them outside the Act's intended coverage of employees. They engage in no distinct trade or calling. They do not hold themselves out in business. They perform typical farm labor for hire wherever jobs are available. They invest nothing but personal services and hand tools. They incur no opportunity for 'profit' or 'loss'; like employees hired on a piecework basis, they are simply paid by the size and grade of cucumbers they pick. They rely solely on work in the fields for their subsistence and livelihood. Despite the contract's admonitions, they have no practical opportunity to insure themselves or their families against loss of income caused by nontortious work injuries. If Borello is not their employer, they themselves, and society at large, thus assume the entire financial burden when such injuries occur. Without doubt, they are a class of workers to whom the protection of the Act is intended to extend." ( Borello , supra , 48 Cal.3d at pp. 357-358, 256 Cal.Rptr. 543, 769 P.2d 399, fns. omitted.)

*23Last, the Borello court rejected the growers' claim that the harvesters should be found to be independent contractors by virtue of their written agreement with the growers, which stated that they were not employees. The court explained: "[T]he protections conferred by the Act have a public purpose beyond the private interests of the workers themselves. Among other things, the statute represents society's recognition that if the financial risk of job injuries is not placed upon the businesses which produce them, it may fall upon the public treasury. ... [¶] Moreover, there is no indication that Borello offers its cucumber harvesters any real choice of terms." ( Borello , supra , 48 Cal.3d at pp. 358-359, 256 Cal.Rptr. 543, 769 P.2d 399.)

On the basis of the foregoing reasons, the Borello court concluded that, as a matter of law, the farmworkers were employees for purposes of the workers' compensation act, and not independent contractors who were excluded from the coverage of the act. ( Borello , supra , 48 Cal.3d at p. 360, 256 Cal.Rptr. 543, 769 P.2d 399.)

As this lengthy review of the Borello decision demonstrates, although we have sometimes characterized Borello as embodying the common law test or standard for distinguishing employees and independent contractors (see, e.g., Ayala , supra , 59 Cal.4th at pp. 530-531, 173 Cal.Rptr.3d 332, 327 P.3d 165 ), it appears more precise to describe Borello as calling for resolution of the employee or independent contractor question by focusing on the intended scope and purposes of the particular statutory provision or provisions at issue. In other words, Borello calls for application of a statutory purpose standard that considers the control of details and other potentially relevant factors identified in prior **20California and out-of-state cases in order to determine which classification (employee or independent contractor) best effectuates the underlying legislative intent and objective of the statutory scheme at issue. *935The Borello decision repeatedly emphasizes statutory purpose as the touchstone for deciding whether a particular category of workers should be considered employees rather than independent contractors for purposes of social welfare legislation. (See Borello , supra , 48 Cal.3d at pp. 351, 353-354, 357, 358, 359, 256 Cal.Rptr. 543, 769 P.2d 399.) This emphasis sets apart the Borello test for distinguishing employees from independent contractors from the standard embraced in more recent federal cases, which apply a more traditional common law test for distinguishing between employees and independent contractors for purposes of most federal statutes. Early federal cases interpreting a variety of New Deal social welfare enactments relied heavily on a statutory purpose interpretation in determining who should be considered an employee for purposes of those enactments. (See, e.g., Labor Board v. Hearst Publications , supra , 322 U.S. at pp. 124-129, 64 S.Ct. 851 ; United States v. Silk (1947) 331 U.S. 704, 711-714, 67 S.Ct. 1463, 91 L.Ed. 1757.) However, subsequent congressional legislation in reaction to such decisions has been interpreted to require that federal legislation generally be construed, in the absence of a more specific statutory standard or definition of employment, to embody a more traditional common law test for distinguishing between employees and independent contractors, in which the control of details factor is given considerable weight. (See, e.g., Nationwide Mut. Ins. Co. v. Darden (1992) 503 U.S. 318, 324-325, 112 S.Ct. 1344, 117 L.Ed.2d 581 ( Darden ).) Unlike the federal experience, however, in the almost 30 years since the Borello decision, the California Legislature has not exhibited or registered any disagreement with either the statutory purpose standard adopted by *24the Borello decision or the application of that standard in Borello regarding the proper classification of the workers involved in that case. Instead, in response to the continuing serious problem of worker misclassification as independent contractors, the California Legislature has acted to impose substantial civil penalties on those that willfully misclassify, or willfully aid in misclassifying, workers as independent contractors. (See § 226.8, enacted by Stats. 2011, ch. 706, § 1; § 2753, enacted by Stats. 2011, ch. 706, § 2.)

C. Martinez

We next summarize this court's decision in Martinez , supra , 49 Cal.4th 35, 109 Cal.Rptr.3d 514, 231 P.3d 259. Although Martinez did not directly involve the issue of whether the workers in question were employees or independent contractors, it did address the meaning of the terms "employ" and "employer" as used in California wage orders, and the proper scope of the Martinez decision lies at the heart of the issue before our court in the present case.

In Martinez , supra , 49 Cal.4th 35, 109 Cal.Rptr.3d 514, 231 P.3d 259, the strawberry grower Munoz & Sons (Munoz) directly employed seasonal agricultural workers but failed to pay the workers the required minimum or overtime wages they had earned. Thereafter, the workers filed an action under section 1194 seeking to recover such *936wages not only from Munoz, but also from several produce merchants to whom Munoz regularly sold its strawberries. The workers contended that in an action for unpaid minimum or overtime wages under section 1194, the alternative definitions of "employ" and "employer" set forth in the applicable Industrial Welfare Commission wage order-there, Wage Order No. 14-constituted the applicable standards for determining who was a potentially liable employer. They further contended that under the wage order definitions, the produce merchants, as well as Munoz, each should properly be considered the workers' employer who was jointly liable for the workers' unpaid wages.

In discussing this question, the court in Martinez recognized at the outset that the workers' attempt in that case to recover unpaid wages "from persons who contracted with their ostensible employer raises issues that have long avoided the attention of California's courts." ( **21Martinez , supra , 49 Cal.4th at p. 50, 109 Cal.Rptr.3d 514, 231 P.3d 259.) The court noted that although section 1194 derived from legislation enacted in 1913 as part of the act that created the Industrial Welfare Commission (hereafter IWC), this court had considered how employment should be defined in actions under section 1194 in only one earlier case. The court further observed that although the phrases used in the applicable IWC wage order to define "employ" and "employer" dated from 1916 and 1947, "the courts of this state have never considered their meaning or scope." ( Id. at p. 50, 109 Cal.Rptr.3d 514, 231 P.3d 259.)

In addressing these largely unexplored issues, the Martinez court turned initially to the language and legislative history of section 1194. The court noted that section 1194, by its terms, does not define the employment relationship or identify the entities who are liable under the statute for unpaid wages. After an extensive review of the statute's legislative history, however, the court concluded that "[a]n examination of section 1194 in its statutory and historical context shows unmistakably that the Legislature intended the IWC's wage orders to define the employment relationship in actions under the statute." ( Martinez , supra , 49 Cal.4th at p. 52, 109 Cal.Rptr.3d 514, 231 P.3d 259 ; see id. at pp. 53-57, 109 Cal.Rptr.3d 514, 231 P.3d 259.)

*25The court in Martinez then considered how the IWC, utilizing its broad legislative authority (see Cal. Const., art. XIV, § 1 ; Industrial Welf. Com. , supra , 27 Cal.3d at p. 701, 613 P.2d 579 ), has defined the scope of the employment relationship through the provisions of its wage orders.14

*937The court first observed that, beginning in 1916, the IWC's wage orders encompassed, as employers, those entities who "employ or suffer or permit" persons to work for them. ( Martinez , supra , 49 Cal.4th at p. 57, 109 Cal.Rptr.3d 514, 231 P.3d 259, italics omitted.) The court noted that the "suffer or permit" language, now embodied in the definition of "employ" in the wage order at issue in Martinez (as well as in the transportation wage order at issue in this case and in all other wage orders), derived from statutes regulating and prohibiting child labor that were in use throughout the country in 1916, and which were based on model child labor laws published between 1904 and 1912. ( Id. at pp. 57-58, 109 Cal.Rptr.3d 514, 231 P.3d 259.) The Martinez court observed that the suffer or permit to work language had been interpreted to impose liability upon an entity "even when no common law employment relationship existed between the minor and the defendant, based on the defendant's failure to exercise reasonable care to prevent child labor from occurring." ( Id. at p. 58, 109 Cal.Rptr.3d 514, 231 P.3d 259.) The court explained: "Not requiring a common law master and servant relationship, the widely used 'employ, suffer or permit' standard reached irregular working arrangements the proprietor of a business might otherwise disavow with impunity. Courts applying such statutes before 1916 had imposed liability, for example, on a manufacturer for industrial injuries suffered by a boy hired by his father to oil machinery [citation], and on a mining company for injuries to a boy paid by coal miners to carry water [citation]." ( Ibid. )

The Martinez court then went on to observe that, in addition to defining "employ" to mean suffer or permit to work, all IWC wage orders also include a separate provision defining "employer" to include a person or entity who "employs or exercises control over the wages, hours, or working conditions of any person." ( Martinez , supra , 49 Cal.4th at p. 59, 109 Cal.Rptr.3d 514, 231 P.3d 259.) With respect to this language, the court stated: "Beginning with the word 'employs,' the definition logically incorporates the separate definition of 'employ' (i.e., 'to engage, suffer, or permit to work') as one alternative. The remainder of the definition-'exercises control over ... wages, hours, or working conditions' "-has no clearly identified, precisely literal statutory or common law antecedent."

**22( Ibid . ) The court nonetheless made three observations about this language. First, the court noted that because the IWC's delegated authority has always been over wages, hours, and working conditions, it made sense to bring within the IWC's regulatory jurisdiction an entity that controls any one of these aspects of the employment relationship. ( Ibid. ) Second, the court explained that because this language, "phrased as it is in the alternative (i.e., 'wages, hours, or working conditions'), the language of the IWC's 'employer'

*26definition has the obvious utility of reaching situations in which multiple entities control different aspects of the employment relationship, as when one entity, which hires and pays workers, places them with other entities that supervise the work." ( Ibid . ) Third, the court observed that "the IWC's 'employer' definition belongs to a set of revisions *938intended to distinguish state wage law from its federal analogue, the FLSA [Fair Labor Standards Act ]" ( ibid. ), providing workers with greater protection than that afforded to workers under the FLSA as limited by Congress under the Portal-to-Portal Act of 1947. ( Id. at pp. 59-60, 109 Cal.Rptr.3d 514, 231 P.3d 259.)

Finally, the court in Martinez held that the IWC wage orders, by defining "employ" to mean "engage" to work (as well as to "suffer or permit" to work), incorporate the common law definition of employment as an alternative definition. The court explained in this regard: "The verbs 'to suffer' and 'to permit,' as we have seen, are terms of art in employment law. [Citation.] In contrast, the verb 'to engage' has no other apparent meaning in the present context than its plain, ordinary sense of 'to employ,' that is, to create a common law employment relationship. This conclusion makes sense because the IWC, even while extending its regulatory protection to workers whose employment status the common law did not recognize, could not have intended to withhold protection from the regularly hired employees who undoubtedly comprise the vast majority of the state's workforce." ( Martinez , supra , 49 Cal.4th at p. 64, 109 Cal.Rptr.3d 514, 231 P.3d 259, fn. omitted.)

The Martinez court summarized its conclusion on this point as follows: "To employ, then, under the IWC's definition, has three alternative definitions. It means: (a) to exercise control over the wages, hours or working conditions, or (b) to suffer or permit to work, or (c) to engage, thereby creating a common law employment relationship." ( Martinez , supra , 49 Cal.4th at p. 64, 109 Cal.Rptr.3d 514, 231 P.3d 259.)

Moreover, the court in Martinez thereafter took pains to emphasize the importance of not limiting the meaning and scope of "employment" to only the common law definition for purposes of the IWC's wage orders, declaring that "ignoring the rest of the IWC's broad regulatory definition would substantially impair the commission's authority and the effectiveness of its wage orders. The commission ... has the power to adopt rules to make the minimum wage 'effective' by 'prevent[ing] evasion and subterfuge ....' [Citation.] ... [L]anguage consistently used by the IWC to define the employment relationship, beginning with its first wage order in 1916 ('suffer, or permit'), was commonly understood to reach irregular working arrangements that fell outside the common law, having been drawn from statutes governing child labor and occasionally that of women. [Citation.] ... To adopt such a definitional provision ... lay squarely within the IWC's power, as the provision has 'a direct relation to minimum wages' [citation] and is reasonably necessary to effectuate the purposes of the statute [citations]. For a court to refuse to enforce such a provision in a presumptively valid wage *939order [citation] simply because it differs from the common law would thus endanger the commission's ability to achieve its statutory purposes. [¶] One cannot overstate the impact of such a holding on the IWC's powers. Were we to define employment exclusively according to the common law in civil actions for unpaid wages we would render the commission's definitions effectively meaningless." ( Martinez , supra , 49 Cal.4th at p. 65, 109 Cal.Rptr.3d 514, 231 P.3d 259, fn. omitted.) *27The court in Martinez thus concluded, first, that the definitions of the employment relationship contained in an applicable wage **23order apply in a civil action brought by a worker under section 1194, and, second, that the applicable wage order sets forth three alternative definitions of employment for purposes of the wage order: "(a) to exercise control over the wages, hours or working conditions, or (b) to suffer or permit to work, or (c) to engage, thereby creating a common law employment relationship." ( Martinez , supra , 49 Cal.4th at p. 64, 109 Cal.Rptr.3d 514, 231 P.3d 259.) The court then went on to determine whether, under the wage order's alternative definitions, the produce merchants in that case should properly be considered the employer of the agricultural workers and thus could be held liable for the workers' unpaid minimum or overtime wages. ( Id. at pp. 68-77, 109 Cal.Rptr.3d 514, 231 P.3d 259.)

With respect to each of the produce merchants, the court in Martinez ultimately concluded that the merchants could not properly be found to be an employer under any of the wage order's alternative definitions.

First, in discussing the scope of the suffer or permit to work standard, the court stated generally: "We see no reason to refrain from giving the IWC's definition of 'employ' its historical meaning. That meaning was well established when the IWC first used the phrase 'suffer, or permit' to define employment, and no reason exists to believe the IWC intended another. Furthermore, the historical meaning continues to be highly relevant today: A proprietor who knows that persons are working in his or her business without having been formally hired, or while being paid less than the minimum wage, clearly suffers or permits that work by failing to prevent it, while having the power to do so. " ( Martinez , supra , 49 Cal.4th at p. 69, 109 Cal.Rptr.3d 514, 231 P.3d 259, italics added.) Nonetheless, the court rejected the workers' contention that because the merchants knew the agricultural workers were working for Munoz and because their work benefitted the produce merchants, the merchants suffered or permitted the workers to work within the meaning of the wage order. The court explained that the fact the merchants may have benefitted from the workers' labor, "in the sense that any purchaser of commodities benefits," was not sufficient to incur liability for having suffered or permitted them to work. ( Id. at p. 69, 109 Cal.Rptr.3d 514, 231 P.3d 259.) The workers' claim failed because they were not working in the produce merchants' businesses and the merchants lacked the power or authority to prevent the workers from working for Munoz. ( Id. at p. 70, 109 Cal.Rptr.3d 514, 231 P.3d 259.)

*940Second, applying the standard that looks to the exercise of control over wages, hours or working conditions, the court rejected the argument that the produce merchants, through their contractual relationships with Munoz, dominated the Munoz business financially, and thus could properly be found to exercise indirect control over the wages and hours of Munoz's employees. ( Martinez , supra , 49 Cal.4th at pp. 71-77, 109 Cal.Rptr.3d 514, 231 P.3d 259.) The court found that contrary to the implicit premise of the workers' claim, the record indicated that the Munoz business was not a sham arrangement created by the produce merchants, but rather constituted "a single, integrated business operation, growing and harvesting strawberries for several unrelated merchants and combining revenue from all sources with a personal investment, in the hope of earning a profit at the end of the season." ( Id. at p. 72, 109 Cal.Rptr.3d 514, 231 P.3d 259.) Further, the court additionally determined *28that "Munoz alone, with the assistance of his foremen, hired and fired [the workers], trained and supervised them, determined their rate and manner of pay (hourly or piece rate), and set their hours, telling them when and where to report to work and when to take breaks." ( Ibid . ) Although the workers pointed to several occasions in which field representatives of the produce merchants had spoken to individual workers about the manner in which strawberries were to be packed ( id . at pp. 74-77, 109 Cal.Rptr.3d 514, 231 P.3d 259 ), the court concluded that the record did not indicate "the field representatives ever supervised or exercised control over [Munoz's] employees" ( id. at p. 76, 109 Cal.Rptr.3d 514, 231 P.3d 259 ) or that the merchants had the right to exercise such control under their contracts with Munoz. ( Id. at p. 77, 109 Cal.Rptr.3d 514, 231 P.3d 259.) **24With respect to the third alternative definition of an employment relationship, the common law standard, the Martinez court observed early in the decision that the workers disclaimed any argument that the produce merchants were their employers under common law. ( Martinez , supra , 49 Cal.4th at p. 52, fn. 17, 109 Cal.Rptr.3d 514, 231 P.3d 259.)

In sum, although the Martinez court concluded that the wage order definitions of the employment relationship apply in civil actions for unpaid minimum or overtime wages under section 1194, the court ultimately affirmed the trial court and Court of Appeal decisions in that case rejecting the workers' claims that the defendant produce merchants were the workers' employers for purposes of section 1194. ( Martinez , supra , 49 Cal.4th at p. 78, 109 Cal.Rptr.3d 514, 231 P.3d 259.)

D. Ayala

Four years after the decision in Martinez , supra , 49 Cal.4th 35, 109 Cal.Rptr.3d 514, 231 P.3d 259, we rendered the decision in Ayala , supra , 59 Cal.4th 522, 173 Cal.Rptr.3d 332, 327 P.3d 165. In Ayala , a wage and hour action had been filed on behalf of newspaper carriers who had been hired by the Antelope Valley Press (Antelope Valley) to deliver its newspaper.

*941The carriers alleged that Antelope Valley had misclassified them as independent contractors when they should have been treated as employees. The trial court in Ayala had denied the plaintiffs' motion to certify the action as a class action on the ground that under the Borello test-which, at the trial level, both parties agreed was the applicable standard-common issues did not predominate because application of the Borello standard "would require 'heavily individualized inquiries' into Antelope Valley's control over the carriers' work." ( 59 Cal.4th at p. 529, 173 Cal.Rptr.3d 332, 327 P.3d 165.)

In reviewing the trial court's ruling in Ayala , this court noted that "[i]n deciding whether plaintiffs were employees or independent contractors, the trial court and Court of Appeal applied the common law test, discussed most recently at length in Borello , supra , 48 Cal.3d 341, 256 Cal.Rptr. 543, 769 P.2d 399." ( Ayala , supra , 59 Cal.4th at pp. 530-531, 173 Cal.Rptr.3d 332, 327 P.3d 165.) We pointed out that while the Ayala case was pending in our court "[w]e solicited supplemental briefing concerning the possible relevance of the additional tests for employee status in IWC wage order No. 1-2001, subdivision 2(D)-(F)." ( Id. at p. 531, 173 Cal.Rptr.3d 332, 327 P.3d 165 [citing, inter alia, Martinez , supra , 49 Cal.4th 35, 109 Cal.Rptr.3d 514, 231 P.3d 259 ].) The court in Ayala explained that "[i]n light of the supplemental briefing, and because plaintiffs proceeded below on the sole basis that they are employees under the common law, we now *29conclude we may resolve the case by applying the common law test for employment, without considering these other tests. [Citation.] Accordingly, we leave for another day the question of what application, if any, the wage order tests for employee status might have to wage and hour claims such as these, and confine ourselves to considering whether plaintiffs' theory that they are employees under the common law definition is one susceptible of proof on a classwide basis." ( Id. at p. 531, 173 Cal.Rptr.3d 332, 327 P.3d 165 ; see also id. at p. 532, fn. 3, 173 Cal.Rptr.3d 332, 327 P.3d 165.)15 **25In the present case, we take up the issue we did not reach in Ayala , namely whether in a wage and hour class action alleging that the plaintiffs have been *942misclassified as independent contractors when they should have been classified as employees, a class may be certified based on the wage order definitions of "employ" and "employer" as construed in Martinez , supra , 49 Cal.4th 35, 109 Cal.Rptr.3d 514, 231 P.3d 259, or, instead, whether the test for distinguishing between employees and independent contractors discussed in Borello , supra , 48 Cal.3d 341, 256 Cal.Rptr. 543, 769 P.2d 399 is the only standard that applies in this setting.

IV. WITH RESPECT TO THE CLAIMS RESTING ON DYNAMEX'S ALLEGED FAILURE TO FULFILL OBLIGATIONS IMPOSED BY THE APPLICABLE WAGE ORDER, DID THE TRIAL COURT PROPERLY DETERMINE CLASS CERTIFICATION BASED ON THE DEFINITIONS OF "EMPLOY" AND "EMPLOYER" IN THE WAGE ORDER ?

As noted, the drivers' general contention in this case is that Dynamex misclassified its drivers as independent contractors when they should have been classified as employees and as a result violated its obligations under the applicable wage order and a variety of statutes. Most of the causes of action in the complaint rest on Dynamex's alleged failure to fulfill obligations directly set forth in the wage order-for example, the alleged failure to pay overtime wages or to provide accurate wage statements. Other causes of action include Dynamex's alleged failure to comply with statutory obligations that do not derive directly from the applicable wage order-for example, the obligation to reimburse employees for business-related transportation expenses such as fuel or tolls. (See § 2802.) As already explained, Dynamex's petition for *30review challenged only the Court of Appeal's conclusion that the trial court, in ruling on the class certification motion, did not err in relying upon the definitions of the employment relationship contained in the wage order with regard to those claims that derive directly from the obligations imposed by the wage order. Accordingly, we address only that issue.16

As discussed above, in Martinez , supra , 49 Cal.4th 35, 109 Cal.Rptr.3d 514, 231 P.3d 259, this court clearly held that the IWC has the authority, in promulgating its wage orders, to define the standard for determining when an entity is to be considered an *943employer for purposes of the applicable wage order. ( Id. at pp. 60-62, 109 Cal.Rptr.3d 514, 231 P.3d 259.) After examining the definitions of "employ" and "employer" set forth in the applicable wage order, the court in Martinez held that the wage order embodied three alternative definitions of "employ": "(a) to exercise control over the wages, hours or working conditions, or (b) to suffer or permit to work, or (c) to engage, thereby creating a common law employment relationship." ( Id. at p. 64, 109 Cal.Rptr.3d 514, 231 P.3d 259.) The court in Martinez went on to consider each of these alternative definitions or standards in determining whether the produce merchants in that case should properly be considered the employers of the agricultural workers for purposes of the applicable wage order. We ultimately concluded that the produce merchants were not employers of the workers under any of the wage order's definitions.

In the present case, Dynamex argues that two of the three alternative definitions identified **26in Martinez -the exercise control over wages hours or working conditions standard and the suffer or permit to work standard-are applicable only in determining whether an entity is a joint employer of the workers. In other words, Dynamex maintains that whether a business exercised control over the workers' wages, hours, or working conditions, or suffered or permitted the workers to work are relevant inquiries only in circumstances in which the question at issue is whether, when workers are "admitted employees" of one business (the primary employer), a business entity that has a relationship to the primary employer should also be considered an employer of the workers such that it is jointly responsible for the obligations imposed by the wage order. According to Dynamex, neither of these wage order definitions of "employ" and "employer" applies when the question to be answered is whether a worker is properly considered an employee who is covered by the wage order or, rather, an independent contractor who is excluded from the wage order's protections. The latter inquiry, Dynamex asserts, is governed solely by the third definition identified in Martinez , the Borello standard.

For the reasons discussed below, we conclude that there is no need in this case *31to determine whether the exercise control over wages, hours or working conditions definition is intended to apply outside the joint employer context, because we conclude that the suffer or permit to work standard properly applies to the question whether a worker should be considered an employee or, instead, an independent contractor, and that under the suffer or permit to work standard, the trial court class certification order at issue here should be upheld. (See Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1032, 139 Cal.Rptr.3d 315, 273 P.3d 513 [when plaintiffs in a class action rely on multiple legal theories, a trial court's certification of a class is not an abuse of discretion if certification is proper under any of the theories].) As explained below, the suffer or permit to work standard has a long and well-established history, and in other jurisdictions has regularly been held *944applicable to the question whether a worker should be considered an employee or an independent contractor for the purposes of social welfare legislation embodying that standard. Accordingly, we confine the discussion of Dynamex's argument to an analysis of the scope and meaning of the suffer or permit to work standard in California wage orders.

A. Does the Suffer or Permit to Work Definition Apply to the Employee/Independent Contractor Distinction?

To begin with, although Dynamex contends that the suffer or permit to work standard should be understood as applicable only to the joint employer question like that involved in the Martinez decision itself, there is nothing in the language of the wage order indicating that the standard is so limited. As Martinez discussed, the suffer or permit language is one of the wage order's alternative definitions of the term "employ." ( Martinez , supra , 49 Cal.4th at p. 64, 109 Cal.Rptr.3d 514, 231 P.3d 259.) On its face, the standard would appear relevant to a determination whether, for purposes of the wage order, a worker should be considered an individual who is "employ[ed ]" by an "employer" (and therefore an employee covered by the wage order) or, instead, an independent contractor who has been hired, but not "employed," by the hiring business (and thus not covered by the wage order).

Moreover, the discussion of the origin and history of the suffer or permit to work language in Martinez itself makes it quite clear that this standard was intended to apply beyond the joint employer context. As Martinez explains, at the time the suffer or permit language was initially adopted as part of a wage order in 1916, such language "was already in use throughout the country in statutes regulating and prohibiting child labor (and occasionally that of women), having been recommended for that purpose in several model child labor laws published between 1904 and 1912 [citation]." ( Martinez , supra , 49 Cal.4th at pp. 57-58, 109 Cal.Rptr.3d 514, 231 P.3d 259, fn. omitted.) Martinez observed that "[n]ot requiring a common law master and servant relationship, the widely used 'employ, suffer or permit' standard reached irregular working arrangements the proprietor **27of a business might otherwise disavow with impunity. Courts applying such statutes before 1916 had imposed liability, for example, on a manufacturer for industrial injuries suffered by a boy hired by his father to oil machinery [citation], and on a mining company for injuries to a boy paid by coal miners to carry water [citation]." ( Id. at p. 58, 109 Cal.Rptr.3d 514, 231 P.3d 259.) Thus, Martinez demonstrates that the suffer or permit to work standard does not apply only to the joint employer context, but also can apply to the question whether, *32for purposes of the obligations imposed by a wage order, a worker who is not an "admitted employee" of a distinct primary employer should *945nonetheless be considered an employee of an entity that has "suffered or permitted" the worker to work in its business.17

Dynamex contends, however, that even if the suffer or permit to work standard can apply outside the joint employer context to circumstances like those in the early child worker cases cited in Martinez , that standard should not be construed as applicable to the question whether an individual worker is an employee or, instead, an independent contractor. Dynamex proffers a number of arguments in support of this contention.

First, Dynamex points out that the suffer or permit to work language has been a part of California wage orders for over a century and that since the Borello decision was handed down in 1989, California decisions have applied the Borello standard in distinguishing employees from independent contractors in many contexts, including in cases arising under California's wage orders. (See, e.g., Ali v. U.S.A. Cab Ltd . (2009) 176 Cal.App.4th 1333, 1347, 98 Cal.Rptr.3d 568 ; Estrada v. FedEx Ground Package System, Inc. (2007) 154 Cal.App.4th 1, 11-13, 64 Cal.Rptr.3d 327 ( Estrada ).) Dynamex asserts that there is no reason to interpret the Martinez decision as altering this situation. In further support of this position, Dynamex refers to several sections of the Division of Labor Standards Enforcement (DLSE) Enforcement Policies and Interpretations Manual that discuss the employee/independent contractor distinction and that indicate that the DLSE has in the past applied the Borello standard in determining whether a worker is an employee or independent contractor for purposes of a wage order. (See DLSE, 2002 Update of the DLSE Enforcement Policies and Interpretations Manual (rev. 2017), §§ 2.2, 2.2.1, 28, available at < www.dir.ca.gov/dlse/DLSEManual/dlse_enfcmanual.pdf> [as of Apr. 30, 2018] (DLSE Manual ).18 Dynamex emphasizes that *946the relevant sections of the DLSE Manual dealing with independent contractors make no mention of the suffer or permit to work standard.

As our decision in Martinez itself observed, however, prior to Martinez no California decision had discussed the wage orders' suffer or permit to work language in any context. ( Martinez , supra , 49 Cal.4th at p. 50, 109 Cal.Rptr.3d 514, 231 P.3d 259.)

*33In Martinez , we applied the suffer or permit to work standard in determining whether the produce merchants should be considered joint employers of the farmworkers even though that test had not been applied in prior California decisions. ( **28Id. at pp. 69-71, 109 Cal.Rptr.3d 514, 231 P.3d 259.) Thus, the lack of prior case support does not distinguish the employee/independent contractor context from the joint employer context at issue in Martinez .

With respect to the effect of the DLSE Manual, the parties and supporting amici curiae have not cited any DLSE decision since Martinez that has considered whether the suffer or permit to work standard should apply in resolving the employee/independent contractor question. Indeed, in a supplemental brief filed in response to a question posed by this court, the DLSE itself notes that the sections in the DLSE Manual that discuss independent contractors have not been revised since the decision in Martinez , and further states that "[ ]he lack of any mention of Martinez in Chapter 28 of the Manual [the section directly discussing the employee/independent contractor distinction] ... should not be interpreted as an expression of a view on the underlying question presented for review in this case." Moreover, our past cases explain that because the DLSE Manual was not adopted pursuant to the procedures embodied in the California Administrative Procedure Act, its provisions are not entitled to the deference ordinarily accorded to formal administrative regulations, and that this court must independently determine the meaning and scope of the provisions of an applicable wage order. (See, e.g., Alvarado v. Dart Container Corp. of California (2018) 4 Cal.5th 542, 554-561, 229 Cal.Rptr.3d 347, 411 P.3d 528 ; Kilby v. CVS Pharmacy, Inc. , supra , 63 Cal.4th at p. 13, 201 Cal.Rptr.3d 1, 368 P.3d 554 ; Peabody v. Time Warner Cable, Inc. (2014) 59 Cal.4th 662, 669-670, 174 Cal.Rptr.3d 287, 328 P.3d 1028 ; Martinez , supra , 49 Cal.4th at p. 63, fn. 34, 109 Cal.Rptr.3d 514, 231 P.3d 259 ; cf. Tidewater v. Bradshaw (1996) 14 Cal.4th 557, 569-570, 59 Cal.Rptr.2d 186, 927 P.2d 296.) Accordingly, we conclude that Dynamex's reliance on the DLSE Manual is not persuasive.

Second, Dynamex asserts that the Martinez decision itself indicates that the Borello standard, rather than the suffer or permit to work standard, applies in the wage order context to distinguish independent contractors from employees. Dynamex points to a passage in Martinez in which the court relied on a *947number of factors discussed in Borello in concluding that Munoz, the grower who employed the individual agricultural workers, was an independent contractor rather than an employee of the produce merchants. ( Martinez , supra , 49 Cal.4th at p. 73, 109 Cal.Rptr.3d 514, 231 P.3d 259.) The grower in Martinez , however, operated a distinct business with its own employees and was not an individual worker like the delivery drivers at issue in the present case. In any event, the passage in question in Martinez makes it quite clear that the court was not deciding whether the Borello standard was the only applicable standard for determining whether a worker is an employee or independent contractor for purposes of an applicable wage order. ( Id. at p. 73, 109 Cal.Rptr.3d 514, 231 P.3d 259 ["Assuming the decision in S.G. Borello , supra , 48 Cal.3d 341, 256 Cal.Rptr. 543, 769 P.2d 399, has any relevance to wage claims, a point we do not decide , the case does not advance plaintiffs' argument" (italics added ) ].)

Third, Dynamex maintains that a number of Court of Appeal opinions decided after Martinez demonstrate that the Borello standard continues to control the determination *34of whether a worker is an employee or independent contractor for purposes of an applicable wage order. (See, e.g., Arnold v. Mutual of Omaha Ins. Co. (2011) 202 Cal.App.4th 580, 586-588, 135 Cal.Rptr.3d 213 ; Arzate v. Bridge Terminal Transport, Inc. (2011) 192 Cal.App.4th 419, 425-427, 121 Cal.Rptr.3d 400.) None of the Court of Appeal decisions relied upon by Dynamex, however, refers to or analyzes the potential application of the suffer or permit to work standard to the employee or independent contractor question. By contrast, the Court of Appeal decision in the present case cited and discussed a number of post- Martinez Court of Appeal decisions recognizing that the definitions of "employ" and "employer" discussed in Martinez now govern the resolution of claims arising out of California wage orders, including whether a worker is an employee or independent contractor. (See, e.g., Guerrero v. Superior Court (2013) 213 Cal.App.4th 912, 945-952, 153 Cal.Rptr.3d 315 ; **29Bradley v. Networkers Internat. LLC (2012) 211 Cal.App.4th 1129, 1146-1147, 150 Cal.Rptr.3d 268 ; Futrell v. Payday California, Inc. (2010) 190 Cal.App.4th 1419, 1429, 119 Cal.Rptr.3d 513.) In short, California decisions since Martinez do not support Dynamex's contention that the suffer or permit to work standard is not applicable to the employee/independent contractor determination.

Fourth, Dynamex contends that even if there is nothing in Martinez or subsequent Court of Appeal decisions that renders the suffer or permit to work standard inapplicable to the employee or independent contractor question, it would introduce unnecessary confusion into California law to adopt a standard for wage orders that differs from the Borello standard, which is widely utilized in other contexts for distinguishing between employees and independent contractors. The applicable wage order, however, purposefully adopts its own definition of "employ" to govern the application of the wage *948order's obligations that is intentionally broader than the standard of employment that would otherwise apply, and as our decision in Martinez emphasized, we must respect the IWC's legislative authority to promulgate the test that will govern the scope of the wage order. ( Martinez , supra , 49 Cal.4th at pp. 60-62, 109 Cal.Rptr.3d 514, 231 P.3d 259.)

In its reply brief, Dynamex advances a variant of this contention, maintaining that a "two-test" approach to the employee or independent contractor distinction would invariably lead to inconsistent determinations for disparate claims under different labor statutes brought by the same individual. Any potential inconsistency, however, arises from the IWC's determination that it is appropriate to apply a distinct and particularly expansive definition of employment regarding obligations imposed by a wage order. Under Martinez , supra , 49 Cal.4th 35, 109 Cal.Rptr.3d 514, 231 P.3d 259, the potential inconsistent results to which Dynamex objects could equally arise in the joint employer context: a third party that has a relationship to a worker's primary employer could be found to be a joint employer for purposes of the obligations imposed by a wage order, even when the third party may not constitute a joint employer for other purposes.

Moreover, because the Borello standard itself emphasizes the primacy of statutory purpose in resolving the employee or independent contractor question, when different statutory schemes have been enacted for different purposes, it is possible under Borello that a worker may properly be considered an employee with reference to one statute but not another. (Accord People v. Superior Court (Sahlolbei ) (2017) 3 Cal.5th 230, 235-245, 219 Cal.Rptr.3d 436, 396 P.3d 568.) Further, because the applicable federal wage and hour law-the Fair *35Labor Standards Act (FLSA) ( 29 U.S.C. § 201 et seq. )-contains its own standard for resolving the employee or independent contractor issue (see post , pp. 56-58, fn. 20, & pp. 61-62), an employer must, in any event, take into account a variety of applicable standards. Indeed, the federal context demonstrates that California is not alone is adopting a distinct standard that provides broader coverage of workers with regard to the very fundamental protections afforded by wage and hour laws and wage orders; like California wage orders, the FLSA contains a broader standard of employment than that generally applicable in other, non-wage-and-hour federal contexts. (See, e.g., Darden , supra , 503 U.S. at p. 326, 112 S.Ct. 1344.)

Finally, and perhaps most significantly, Dynamex argues that the suffer or permit to work standard cannot serve as the test for distinguishing employees from independent contractors because a literal application of that standard would characterize all individual workers who directly provide services to a business as employees. A business that hires any individual to provide services to it can always be said to knowingly "suffer or permit" such an *949individual to work for the business. A literal application of the suffer or permit to work standard, therefore, would bring within its reach even those individuals hired by a business-including unquestionably independent plumbers, electricians, architects, sole practitioner attorneys, and the like-who provide only occasional services unrelated to a company's primary line of business and who have traditionally been viewed as working in their own independent business. For this reason, Dynamex maintains that the Borello standard is the only **30approach that can provide a realistic and practical test for distinguishing employees from independent contractors.

It is true that, when applied literally and without consideration of its history and purposes in the context of California's wage orders, the suffer or permit to work language, standing alone, does not distinguish between, on the one hand, those individual workers who are properly considered employees for purposes of the wage order and, on the other hand, the type of traditional independent contractors described above, like independent plumbers and electricians, who could not reasonably have been intended by the wage order to be treated as employees of the hiring business. As other jurisdictions have recognized, however, that the literal language of the suffer or permit to work standard does not itself resolve the question whether a worker is properly considered a covered employee rather than an excluded independent contractor does not mean that the suffer or permit to work standard has no substantial bearing on the determination whether an individual worker is properly considered an employee or independent contractor for purposes of a wage and hour statute or regulation. (See, e.g., Rutherford Food Corp. v. McComb (1947) 331 U.S. 722, 729, 67 S.Ct. 1473, 91 L.Ed. 1772 ( Rutherford Foo d ); Scantland v. Jeffry Knight, Inc. (11th Cir. 2013) 721 F.3d 1308, 1311 ( Scantlan d ); Brock v. Superior Care, Inc. (2d Cir. 1988) 840 F.2d 1054, 1058-1059 ( Superior Care ); Sec'y of Labor, U.S. Dept. of Labor v. Lauritzen (7th Cir. 1987) 835 F.2d 1529, 1535-1539 ( Lauritzen ); see id. at pp. 1539-1545 (conc. opn. of Easterbrook, J.); Silent Woman, Ltd. v. Donovan (E.D.Wis. 1984) 585 F.Supp. 447, 450-452 ( Silent Woman, Ltd. ); Jeffcoat v. State Dept. of Labor (Alaska 1987) 732 P.2d 1073, 1075-1078 ; Cejas Commercial Interiors, Inc. v. Torres-Lizama (2013) 260 Or.App. 87, 316 P.3d 389, 397 ; Commonwealth v. Stuber (Pa. 2003) 822 A.2d 870, 873-875 ; Anfinson v. FedEx Ground Package System (2012) 174 Wash.2d 851, 281 P.3d 289, 297-299 ; see generally *36U.S. Dept. of Labor, Wage & Hour Div., Administrator's Interpretation letter No. 2015-1, The Application of the Fair Labor Standard Act's "Suffer or Permit" Standard in the Identification of Employees Who Are Misclassified as Independent *950Contractors (July 15, 2015) available online at < http://www.blr.com/html_email/AI2015-1.pdf> [as of Apr. 30, 2018].)19

As we explain, for a variety of reasons we agree with these authorities that the suffer or permit to work standard is relevant and significant in assessing the scope of the category of workers that the wage order was intended to protect. The standard is useful in determining who should properly be treated as covered employees, rather than excluded independent contractors, for purposes of the obligations imposed by the wage order.

At the outset, it is important to recognize that over the years and throughout the country, a number of standards or tests have been adopted in legislative enactments, administrative regulations, and court decisions as the means for distinguishing between those workers who should be considered employees and those who should be considered independent contractors.20

*951The suffer or permit **31to work *37standard was proposed and adopted in 1937 as part of the FLSA, the principal federal wage and hour legislation. One of the authors of the legislation, then-Senator (later United States Supreme Court Justice) Hugo L. Black, described this standard as "the broadest definition" that has been devised for extending the coverage of a statute or regulation to the widest class of workers that reasonably fall within the reach of a social welfare statute. (See United States v. Rosenwasser (1945) 323 U.S. 360, 363, fn. 3, 65 S.Ct. 295, 89 L.Ed. 301 ( Rosenwasser ).) More recent cases, in referring to the suffer or permit to work standard, continue to describe the standard in just such broad, inclusive terms. (See, e.g., Darden , supra , 503 U.S. at p. 326, 112 S.Ct. 1344 [noting the "striking breadth" of the suffer or permit to work standard ]; Zheng v. Liberty Apparel Co. , supra , 355 F.3d at p. 69 ; Lauritzen , supra , 835 F.2d at p. 1543 (conc. opn. of Easterbrook, J.); Donovan v. Dialamerica Marketing, Inc. (3d Cir. 1985) 757 F.2d 1376, 1382.) *952The adoption of the exceptionally broad suffer or permit to work standard in California wage orders finds its justification in the fundamental purposes and necessity of the **32minimum wage and maximum hour legislation in which the standard has traditionally been embodied. Wage and hour statutes and wage orders were adopted in recognition of the fact that individual workers generally possess less bargaining power than a hiring business and that *38workers' fundamental need to earn income for their families' survival may lead them to accept work for substandard wages or working conditions. The basic objective of wage and hour legislation and wage orders is to ensure that such workers are provided at least the minimal wages and working conditions that are necessary to enable them to obtain a subsistence standard of living and to protect the workers' health and welfare. (See, e.g., Rosenwasser , supra , 323 U.S. at p. 361, 65 S.Ct. 295 [wage and hour laws are intended to protect workers against " 'the evils and dangers resulting from wages too low to buy the bare necessities of life and from long hours of work injurious to health' "]; Industrial Welf.Com. , supra , 27 Cal.3d at p. 700, 166 Cal.Rptr. 331, 613 P.2d 579 [purpose of California wage orders is "to protect the health and welfare" of workers].) These critically important objectives support a very broad definition of the workers who fall within the reach of the wage orders.

These fundamental obligations of the IWC's wage orders are, of course, primarily for the benefit of the workers themselves, intended to enable them to provide at least minimally for themselves and their families and to accord them a modicum of dignity and self-respect. (See generally Rogers, Justice at Work: Minimum Wage Laws and Social Equality (2014) 92 Tex. L.Rev. 1543.) At the same time, California's industry-wide wage orders are also clearly intended for the benefit of those law-abiding businesses that comply with the obligations imposed by the wage orders, ensuring that such responsible companies are not hurt by unfair competition from competitor businesses that utilize substandard employment practices. (See § 90.5, subd. (a);21 accord Citicorp. Industrial Credit,Inc. v. Brock (1987) 483 U.S. 27, 36, 107 S.Ct. 2694 ["While improving working conditions was undoubtedly one of Congress' concerns, it was certainly not the only aim of the FLSA. In addition to the goal [of establishing decent wages], the Act's declaration of policy ... reflects Congress' desire to eliminate the competitive advantage enjoyed by goods produced under substandard conditions"]; Roland Co. v. Walling (1946) 326 U.S. 657, 669-670, 66 S.Ct. 413, 90 L.Ed. 383 ["[The FLSA] seeks to eliminate substandard labor conditions ... on a *953wide scale throughout the nation. The purpose is to raise living standards. This purpose will fail of realization unless the Act has sufficiently broad coverage to eliminate in large measure ... the competitive advantage accruing from savings in costs based upon substandard labor conditions. Otherwise the Act will be ineffective, and will penalize those who practice fair labor standards as against those who do not"].) Finally, the minimum employment standards imposed by wage orders are also for the benefit of the public at large, because if the wage orders' obligations are not fulfilled the public will often be left to assume responsibility for the ill effects to workers and their families resulting from substandard wages or unhealthy and unsafe working conditions.

Given the intended expansive reach of the suffer or permit to work standard as reflected by its history, along with the more general principle that wage orders are the type of remedial legislation *39that must be liberally construed in a manner that serves its remedial purposes (see, e.g., Industrial Welf. Com. , supra , 27 Cal.3d at p. 702, 166 Cal.Rptr. 331, 613 P.2d 579 ), as our decision in Martinez recognized, the suffer or permit to work standard must be interpreted and applied broadly to include within the covered "employee" category all individual workers who can reasonably be viewed as "working in the [hiring entity's] business ." ( Martinez, supra , 49 Cal.4th at p. 69, 109 Cal.Rptr.3d 514, 231 P.3d 259, italics added ["A proprietor **33who knows that persons are working in his or her business without having been formally hired, or while being paid less than the minimum wage, clearly suffers or permits that work by failing to prevent it, while having the power to do so" (italics added ) ].) Under the suffer or permit to work standard, an individual worker who has been hired by a company can properly be viewed as the type of independent contractor to which the wage order was not intended to apply only if the worker is the type of traditional independent contractor-such as an independent plumber or electrician-who would not reasonably have been viewed as working in the hiring business . Such an individual would have been realistically understood, instead, as working only in his or her own independent business . (See, e.g., Allen v. Hayward (Q.B. 1845) 115 Eng.Rep. 749, 755 [describing independent contractor as "a person carrying on an independent business ... to perform works which [the hiring local officials] could not execute for themselves, and who was known to all the world as performing them"]; Enforcing Fair Labor Standards , supra , 46 UCLA L.Rev. at pp. 1143-1144.)

The federal courts, in applying the suffer or permit to work standard set forth in the FLSA, have recognized that the standard was intended to be broader and more inclusive than the preexisting common law test for distinguishing employees from independent contractors, but at the same time, does not purport to render every individual worker an employee rather than an independent contractor. (See Rutherford Food , supra , 331 U.S. 722, 728-729, 67 S.Ct. 1473.) As noted above (ante , pp. 232 Cal.Rptr.3d at pp. 36-37 fn. 20, 416 P.3d at pp. 30-31, fn. 20), the federal courts have *954developed what is generally described as the "economic reality" test for determining whether a worker should be considered an employee or independent contractor for purposes of the FLSA-namely, whether, as a matter of economic reality, the worker is economically dependent upon and makes a living in another's business (in which case he or she is considered to be a covered employee) or, instead is in business for himself or herself (and may properly be considered an excluded independent contractor). (See, e.g., Whitaker House Co-op , supra , 366 U.S. 28, 33, 81 S.Ct. 933 ; Alamo Foundation , supra , 471 U.S. 290, 301, 105 S.Ct. 1953.) In applying the economic reality test, federal courts have looked to a list of factors that is briefer than, but somewhat comparable to, the list of factors considered in the pre- Borello California decisions and in Borello itself. (See, e.g., Superior Care , supra , 840 F.2d at p. 1059 ; Lauritzen , supra , 835 F.2d at pp. 1534-1535.) Furthermore, like Borello , federal FLSA decisions applying the economic reality standard have held that no one factor is determinative and that the ultimate decision whether a worker is to be found to be an employee or independent contractor for purposes of the FLSA should be based on all the circumstances. ( Rutherford Food , supra , 331 U.S. at p. 730, 67 S.Ct. 1473 ; Scantland , supra , 721 F.3d at pp. 1312-1313 ; *40Real v. Driscoll Strawberry Associates, Inc. (1979) 603 F.2d 748, 754-755 ; see generally Annot., supra , 51 A.L.R.Fed. 702.)

A multifactor standard-like the economic reality standard or the Borello standard-that calls for consideration of all potentially relevant factual distinctions in different employment arrangements on a case-by-case, totality-of-the-circumstances basis has its advantages. A number of state courts, administrative agencies and academic commentators have observed, however, that such a wide-ranging and flexible test for evaluating whether a worker should be considered an employee or an independent contractor has significant disadvantages, particularly when applied in the wage and hour context.

First, these jurisdictions and commentators have pointed out that a multifactor, "all the circumstances" standard makes it difficult for both hiring businesses and workers to determine in advance how a particular category of workers will be classified, frequently leaving the ultimate employee or independent contractor determination to a subsequent and often considerably delayed judicial decision. In practice, the lack of an easily and consistently applied standard often leaves both businesses and workers in the dark with respect to basic questions relating to wages and working conditions that arise regularly, on a day-to-day basis. (See, e.g., Hargrove v. Sleepy's , LLC (2015) 220 N.J. 289, 106 A.3d 449, 465 ( Hargrove ) ["permitting **34an employee to know when, how, and how much he will be paid requires a test designed to yield a more predictable result than a totality-of-the-circumstances analysis that is by its nature case specific"]; accord Lauritzen , supra , 835 F.2d at p. 1539 (conc. opn. of Easterbrook, J.) ["People are entitled to know the legal *955rules before they act, and only the most compelling reason should lead a court to announce an approach under which no one can know where he stands until litigation has been completed. ... My colleagues' balancing approach is the prevailing method, which they apply carefully. But it is unsatisfactory both because it offers little guidance for future cases and because any balancing test begs questions about which aspects of 'economic reality' matter, and why"].)

Second, commentators have also pointed out that the use of a multifactor, all the circumstances standard affords a hiring business greater opportunity to evade its fundamental responsibilities under a wage and hour law by dividing its work force into disparate categories and varying the working conditions of individual workers within such categories with an eye to the many circumstances that may be relevant under the multifactor standard. (See, e.g., Middleton, Contingent Workers in a Changing Economy: Endure, Adapt, or Organize? (1997) 22 N.Y.U. Rev. L. & Soc. Change 557, 568-569 ["[ ]he legal test for determining employee/independent contractor status is a complex and manipulable multifactor test which invites employers to structure their relationships with employees in whatever manner best evades liability"]; Befort, Labor and Employment Law at the Millennium: A Historical Review and Critical Assessment (2002) 43 B.C. L.Rev. 351, 419 ; Carlson, Why the Law Still Can't Tell an Employee When It Sees One and How It Ought to Stop Trying (2001) 22 Berkeley J. Emp. & Lab. L. 295, 335-338.)22

*41As already noted (ante , pp. 232 Cal.Rptr.3d at pp. 36-37 fn. 20, 416 P.3d at pp. 30-31, fn. 20), a number of jurisdictions have adopted a simpler, more structured test for distinguishing between employees and independent contractors-the so-called "ABC" test-that minimizes these disadvantages. The ABC test presumptively considers all workers to be employees, and permits workers to be classified as independent contractors only if the hiring business demonstrates that the worker in question satisfies each of three conditions: (a) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of the work and in fact; and (b) that the worker performs work that is outside the usual course of the hiring entity's business; and (c) that the worker is customarily engaged in an *956independently established trade, occupation, or business of the same nature as that involved in the work performed.23 **35Unlike a number of our sister states that included the suffer-or-permit-to-work standard in their wage and hour laws or regulations after the FLSA had been enacted and had been interpreted to incorporate the economic reality test, California's adoption of the suffer or permit to work standard predated the enactment of the FLSA. (See Martinez , supra , 49 Cal.4th at pp. 57-59, 109 Cal.Rptr.3d 514.) Thus, as a matter of legislative intent, the IWC's adoption of the suffer or permit to work standard in California wage orders was not intended to embrace the federal economic reality test. Furthermore, prior California cases have declined to interpret California wage orders as governed by the federal economic reality standard and instead have indicated that the California wage orders are intended to provide broader protection than that accorded workers under the federal standard. (See Martinez , supra , 49 Cal.4th at pp. 66-68, 109 Cal.Rptr.3d 514, 231 P.3d 259 ; accord Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833, 843, 182 Cal.Rptr.3d 124, 340 P.3d 355 ; Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, 592, 94 Cal.Rptr.2d 3, 995 P.2d 139 ; Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785, 797-798, 85 Cal.Rptr.2d 844, 978 P.2d 2.) *42We find merit in the concerns noted above regarding the disadvantages, particularly in the wage and hour context, inherent in relying upon a multifactor, all the circumstances standard for distinguishing between employees and independent contractors. As a consequence, we conclude it is appropriate, and most consistent with the history and purpose of the suffer or *957permit to work standard in California's wage orders, to interpret that standard as: (1) placing the burden on the hiring entity to establish that the worker is an independent contractor who was not intended to be included within the wage order's coverage;24 and (2) requiring the hiring entity, in order to meet this burden, to establish each of the three factors embodied in the ABC test-namely (A) that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact; and (B) that the worker performs work that is outside the usual course of the hiring entity's business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed. (Accord Hargrove , supra , 106 A.3d at pp. 463-46425 ; **36see also Weil, *958The *43Fissured Workplace (2014) pp. 204-205 [recommending adoption of the ABC test ]; ABC on the Books , supra , 18 U.Pa. J.L. & Soc. Change at pp. 61, 82-84, 101-10226 .)

We briefly discuss each part of the ABC test and its relationship to the suffer or permit to work definition.

1. Part A: Is the worker free from the control and direction of the hiring entity in the performance of the work, both under the contract for the performance of the work and in fact?

First, as our decision in Martinez makes clear ( Martinez , supra , 49 Cal.4th at p. 58, 109 Cal.Rptr.3d 514, 231 P.3d 259 ), the suffer or permit to work definition was intended to be broader and more inclusive than the common law test, under which a worker's freedom from the control of the hiring entity in the performance of the work, both under the contract for the performance of the work and in fact, was the principal factor in establishing that a worker was an independent contractor rather than an employee. Accordingly, because a worker who is subject, either as a matter of contractual right or in actual practice, to the type and degree of control a business typically exercises over employees would be considered an employee under the common law test, such a worker would, a fortiori, also properly be treated as an employee for purposes of the suffer or permit to work standard. Further, as under Borello , supra , 48 Cal.3d at pages 353-354, 356-357, 256 Cal.Rptr. 543, 769 P.2d 399, depending on the nature of the work and overall arrangement between the parties, a business need not control the precise manner or details of the work in order to be found to have maintained the necessary control that an employer ordinarily possesses over its employees, but does not possess over a genuine independent contractor. The hiring entity must establish that the worker is free of such control to satisfy part A of the test.27

**37*44*9592. Part B: Does the worker perform work that is outside the usual course of the hiring entity's business?

Second, independent of the question of control, the child labor antecedents of the suffer or permit to work language demonstrate that one principal objective of the suffer or permit to work standard is to bring within the "employee" category all individuals who can reasonably be viewed as working "in the [hiring entity's] business " (see Martinez , supra , 49 Cal.4th at p. 69, 109 Cal.Rptr.3d 514, 231 P.3d 259, italics added ), that is, all individuals who are reasonably viewed as providing services to the business in a role comparable to that of an employee, rather than in a role comparable to that of a traditional independent contractor. (Accord Rutherford Food , supra , 331 U.S. at p. 729, 67 S.Ct. 1473 [under FLSA, label put on relationship by hiring business is not controlling and inquiry instead focuses on whether "the work done, in essence, follows the usual path of an employee" ].) Workers whose roles are most clearly comparable to those of employees include individuals whose services are provided within the usual course of the business of the entity for which the work is performed and thus who would ordinarily be viewed by others as working in the hiring entity's business and not as working, instead, in the worker's own independent business.

Thus, on the one hand, when a retail store hires an outside plumber to repair a leak in a bathroom on its premises or hires an outside electrician to install a new electrical line, the services of the plumber or electrician are not part of the store's usual course of business and the store would not reasonably be seen as having suffered or permitted the plumber or electrician to provide services to it as an employee. (See, e.g., Enforcing Fair Labor Standards , supra , 46 UCLA L.Rev. at p. 1159.) On the other hand, when a clothing manufacturing company hires work-at-home seamstresses to make dresses from cloth and patterns supplied by the company that will thereafter *960be sold by the company (cf., e.g., Silent Woman, Ltd. , supra , 585 F.Supp. at pp. 450-452 ; accord Whitaker House Co-op , supra , 366 U.S. 28, 81 S.Ct. 933 ), or when a bakery hires cake decorators to work on a regular basis on its custom-designed cakes (cf., e.g., Dole v. Snell (10th Cir. 1989) 875 F.2d 802, 811 ), the workers are part of the hiring entity's usual business operation and the hiring business can reasonably be viewed as having suffered or permitted the workers to provide services as employees. In the latter settings, the workers' role within the hiring entity's usual business operations is more like that of an employee than that of an independent contractor.

Treating all workers whose services are provided within the usual course of the hiring entity's business as employees is important to ensure that those workers who need and want the fundamental protections afforded by the wage order do not lose those protections. If the wage order's obligations could be avoided for workers who provide services in a role comparable to employees but who are willing to forgo the wage order's protections, other workers *45who provide similar services and are intended to be protected under the suffer or permit to work standard would frequently find themselves displaced by those willing to decline such coverage. As the United States Supreme Court explained in a somewhat analogous context in Alamo Foundation , supra , 471 U.S. at page 302, 105 S.Ct. 1953, with respect to the federal wage and hour law: "[T]he purposes of the [FLSA] require that it be applied even to those who would decline its protections. If an exception to the Act were carved out for employees willing to testify that they performed work 'voluntarily,' employers might be able to use superior bargaining power to coerce employees to make such assertions, or to waive their protections under the Act. [Citations.] Such **38exceptions to coverage would affect many more people than those workers directly at issue in this case and would be likely to exert a general downward pressure on wages in competing businesses." ( Ibid. )

As the quoted passage from the Alamo Foundation case suggests, a focus on the nature of the workers' role within a hiring entity's usual business operation also aligns with the additional purpose of wage orders to protect companies that in good faith comply with a wage order's obligations against those competitors in the same industry or line of business that resort to cost saving worker classifications that fail to provide the required minimum protections to similarly situated workers. A wage order's industry-wide minimum requirements are intended to create a level playing field among competing businesses in the same industry in order to prevent the type of "race to the bottom" that occurs when businesses implement new structures or policies that result in substandard wages and unhealthy conditions for workers. (Accord Gemsco, Inc. v. Walling (1945) 324 U.S. 244, 252, 65 S.Ct. 605, 89 L.Ed. 921 ["[I]f the [proposed restrictions on homeworkers] cannot be made, the floor for the entire industry falls and the right of the homeworkers and the employers to be free from the prohibition destroys the right of the *961much larger number of factory workers to receive the minimum wage"]; see generally Enforcing Fair Labor Standards , supra , 46 UCLA. L.Rev. at pp. 1178-1103.) Competing businesses that hire workers who perform the same or comparable duties within the entities' usual business operations should be treated similarly for purposes of the wage order.28

Accordingly, a hiring entity must establish that the worker performs work that is outside the usual course of its business in order to satisfy part B of the ABC test.29

*463. Part C: Is the worker customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity?

Third, as the situations that gave rise to the suffer or permit to work language disclose, the suffer or permit to work standard, by expansively defining who is an employer, is intended to preclude a business from evading *962the prohibitions or responsibilities **39embodied in the relevant wage orders directly or indirectly-through indifference, negligence, intentional subterfuge, or misclassification. It is well established, under all of the varied standards that have been utilized for distinguishing employees and independent contractors, that a business cannot unilaterally determine a worker's status simply by assigning the worker the label "independent contractor" or by requiring the worker, as a condition of hiring, to enter into a contract that designates the worker an independent contractor. (See, e.g., Borello , supra , 48 Cal.3d at pp. 349, 358-359, 256 Cal.Rptr. 543, 769 P.2d 399 ; Rutherford Food , supra , 331 U.S. at p. 729, 67 S.Ct. 1473.) This restriction on a hiring business's unilateral authority has particular force and effect under the wage orders' broad suffer or permit to work standard.

As a matter of common usage, the term "independent contractor," when applied to an individual worker, ordinarily has been understood to refer to an individual who independently has made the decision to go into business for himself or herself. (See, e.g., Borello , supra , 48 Cal.3d at p. 354, 256 Cal.Rptr. 543, 769 P.2d 399 [describing independent contractor as a worker who "has independently chosen the burdens and benefits of self-employment"].) Such an individual generally takes the usual steps to establish and promote his or her independent business-for example, through incorporation, licensure, advertisements, routine offerings to provide the services of the independent business to the public or to a number of potential customers, and the like. When a worker has not independently decided to engage in an independently established business but instead is simply designated an independent contractor by the unilateral action of a hiring entity, there is a substantial risk that the hiring business is attempting to evade the demands of an applicable wage order through misclassification. A company that labels as independent contractors a class of workers who are not engaged in an independently established business in order to enable the company to obtain the economic advantages that flow from avoiding *47the financial obligations that a wage order imposes on employers unquestionably violates the fundamental purposes of the wage order. The fact that a company has not prohibited or prevented a worker from engaging in such a business is not sufficient to establish that the worker has independently made the decision to go into business for himself or herself.30 *963Accordingly, in order to satisfy part C of the ABC test, the hiring entity must prove that the worker is customarily engaged in an independently established trade, occupation, or business.31

It bears emphasis that in order to establish that a worker is an independent contractor under the ABC standard, the hiring **40entity is required to establish the existence of each of the three parts of the ABC standard. Furthermore, inasmuch as a hiring entity's failure to satisfy any one of the three parts itself establishes that the worker should be treated as an employee for purposes of the wage order, a court is free to consider the separate parts of the ABC standard in whatever order it chooses. Because in many cases it may be easier and clearer for a court to determine whether or not part B or part C of the ABC standard has been satisfied than for the court to resolve questions regarding the nature or degree of a worker's freedom from the hiring entity's control for purposes of part A of the standard, the *48significant advantages of the ABC standard-in terms of increased clarity and consistency-will often be best served by first considering one or both of the latter two parts of the standard in resolving the employee or independent contractor question. (See, e.g., Awuah v. Coverall North America, Inc. (D.Mass. 2010) 707 F.Supp.2d 80, 82 [considering only part B of the ABC standard ]; Coverall N. America v. Div. of Unemployment (2006) 447 Mass. 852, 857 N.E.2d 1083, 1087 [considering only part C of the ABC standard ]; Boston Bicycle Couriers v. Deputy Dir. of the Div. of Empl. & Training , supra , 778 N.E.2d at p. 968 [same].) *9644. Conclusion regarding suffer or permit to work definition

In sum, we conclude that unless the hiring entity establishes (A) that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact, (B) that the worker performs work that is outside the usual course of the hiring entity's business, and (C) that the worker is customarily engaged in an independently established trade, occupation, or business, the worker should be considered an employee and the hiring business an employer under the suffer or permit to work standard in wage orders. The hiring entity's failure to prove any one of these three prerequisites will be sufficient in itself to establish that the worker is an included employee, rather than an excluded independent contractor, for purposes of the wage order.

In our view, this interpretation of the suffer or permit to work standard is faithful to its history and to the fundamental purpose of the wage orders and will provide greater clarity and consistency, and less opportunity for manipulation, than a test or standard that invariably requires the consideration and weighing of a significant number of disparate factors on a case-by-case basis. (Accord Hargrove, supra , 106 A.3d at pp. 463-464 [interpreting suffer or permit to work definition of state wage law to permit application of the ABC test ]; Tianti v. William Raveis Real Estate (1995) 231 Conn. 690, 651 A.2d 1286, 1290-1291 [same].)32

*49*965B. Application of the Suffer or Permit to Work Standard in This Case

We now turn to application of the suffer or permit to work standard in this case. As **41Dynamex points out, the trial court, in applying the suffer or permit to work definition in its class certification order, appears to have adopted a literal interpretation of the suffer or permit to work language that, if applied generally, could potentially encompass the type of traditional independent contractor-like an independent plumber or electrician-who could not reasonably have been viewed as the hiring business's employee.33 We agree with Dynamex that the trial court's view of the suffer or permit to work standard was too broad. For the reasons discussed below, however, we nonetheless conclude, for two independently sufficient reasons, that under a proper interpretation of the suffer or permit to work standard, the trial court's ultimate determination that there is a sufficient commonality of interest to support certification of the proposed class is correct and should be upheld.

First, with respect to part B of the ABC test, it is quite clear that there is a sufficient commonality of interest with regard to the question whether the work provided by the delivery drivers within the certified class is outside the usual course of the hiring entity's business to permit plaintiffs' claim of misclassification to be resolved on a class basis. In the present case, Dynamex's entire business is that of a delivery service. Unlike other types of businesses in which the delivery of a product may or may not be viewed as within the usual course of the hiring company's business,34 here the hiring entity is a delivery company and the question whether the work performed by the delivery drivers within the certified class is outside the usual course of its business is clearly amenable to determination on a class basis. As a general matter, Dynamex obtains the customers for its deliveries, sets the rate that the customers will be charged, notifies the drivers where to pick up and deliver the packages, tracks the packages, and requires the drivers to utilize its *966tracking and recordkeeping system. As such, there is a sufficient commonality of interest regarding whether the work performed by the certified class of drivers who pick up and deliver packages and documents from and to Dynamex customers on an ongoing basis is outside the usual course of Dynamex's *50business to permit that question to be resolved on a class basis.

Because each part of the ABC test may be independently determinative of the employee or independent contractor question, our conclusion that there is a sufficient commonality of interest under part B of the ABC test is sufficient in itself to support the trial court's class certification order. (See Brinker Restaurant Corp. v. Superior Court , supra , 53 Cal.4th at p. 1032, 139 Cal.Rptr.3d 315, 273 P.3d 513 [class certification is not an abuse of **42discretion if certification is proper under any theory].) Nonetheless, for guidance we go on to discuss whether there is a sufficient commonality of interest under part C of the ABC test to support class treatment of the relevant question under that part of the ABC test as well.

Second, with regard to part C of the ABC test, it is equally clear from the record that there is a sufficient commonality of interest as to whether the drivers in the certified class are customarily engaged in an independently established trade, occupation, or business to permit resolution of that issue on a class basis As discussed above, prior to 2004 Dynamex classified the drivers who picked up and delivered the packages and documents from Dynamex customers as employees rather than independent contractors. In 2004, Dynamex adopted a new business structure under which it required all of its drivers to enter into a contractual agreement that specified the driver's status as an independent contractor. Here the class of drivers certified by the trial court is limited to drivers who, during the relevant time periods, performed delivery services only for Dynamex. The class excludes drivers who performed delivery services for another delivery service or for the driver's own personal customers; the class also excludes drivers who had employees of their own. With respect to the class of included drivers, there is no indication in the record that there is a lack of commonality of interest regarding the question whether these drivers are customarily engaged in an independently established trade, occupation, or business. For this class of drivers, the pertinent question under part C of the ABC test is amenable to resolution on a class basis.35

For the foregoing reasons, we conclude that under a proper understanding of the suffer or permit to work standard there is, as a matter of law, a *967sufficient commonality of interest within the certified class to permit the question whether such drivers are employees or independent contractors for purposes of the wage order to be litigated on a class basis. Accordingly, we conclude that with respect to the causes of action that are based on alleged violations of the obligations imposed by the wage order, the trial court did not abuse its discretion in certifying the class and in denying Dynamex's motion to decertify the class.

V. CONCLUSION

For the reasons discussed above, the judgment of the Court of Appeal is affirmed.

WE CONCUR:

CHIN, J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.

SIGGINS, J.*