Posted May 22, 2018 in Legislation
By Chad Barger
In case you haven’t heard, there is big news in the California Supreme Court regarding their decision on April 30th, 2018, in the case of Dynamex Operations West, Inc. v. Superior Court regarding independent contractors. The court issued a ruling that makes it much more difficult for companies to classify workers as independent contractors. The previous standard used for classifying workers as employees or independent contractors had been in place since the 1980’s and was based upon a multifactor test that considered, among other factors, the worker’s abilities, the method of payment, and the level of control exercised over the worker.
The new standard adopted by the Supreme Court requires businesses to establish three factors to properly classify a worker as an independent contractor, otherwise known as “the ABC test.”This decision greatly expands the definition of “employee” under California law:
- The worker is free from the control and direction of the hirer in connection with the performance of the work, both under contract for the performance of such work and in fact; and
- The worker performs work that is outside the usual course of the hiring entity’s business; and
- The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed by the hiring entity.
So, what was the change that affected us?
Section “B” was changed to read:
B. The worker performs work that is outside the usual course of the hiring entity’s business. Meaning, that to be deemed an independent contractor, the “IC” cannot perform the same services the hiring entity does. So, if you’re a process serving company and you use independent contractors to serve your process, you must now classify them as employees.
Per the Court’s ruling, workers in California are presumed to be employees and, therefore, are accorded the myriad of protections they enjoy, and it’s the employer’s burden to satisfy the three “ABC” factors to lawfully classify the worker as an independent contractor instead of an employee. The court’s example stated that a plumber hired by a retail store to repair a bathroom leak is not performing work that is part of the store’s usual business and would, therefore, be considered an independent contractor of that store. However, seamstresses sewing at home using materials provided by a clothing manufacturer would probably be considered employees of the manufacturer. If a worker should properly be classified as an employee, the employer bears the responsibility for paying federal Social Security and payroll taxes, unemployment insurances taxes and state employment taxes, providing workers’ compensation insurance, and complying with federal and California regulations governing the wages, hours, and working conditions of employees.
If you haven’t already done so, I would recommend all businesses consult with legal counsel to determine your path forward. These are new and crazy times in California, but you can always rely on CALSPro to provide you with the issues that matter to you. To borrow a phrase from my local news channel, “We report, you decide.”