The Court of Appeal (Fourth Appellate District, Division One) issued an interesting opinion today that may have some employment class action implications. In Messenger Courier Association of the Americas, et al. v. California Unemployment Insurance Appeals Board (July 15, 2009), the Court considered the validity of NCM Direct Delivery v. Employment Development Department, Precedent Tax Decision No. P-T-495 (2007). The Court of Appeal affirmed the Trial Court's Order that upheld the validity of the Precedent Tax Decision. The interesting twist is that the Precedent Tax Decision applied the employment test of S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 to an unemployment insurance assessment matter. The class action angle comes into play if developments in the definition of employment conclusively govern actions alleging misclassification of independent contractors. Specifically, Messenger noted that the right to control is the first test for employment, but if that test of control is not dispositive, the "secondary" factors may be applied to determine the correct nature of a service relationship. Slip op., at 6.