CLIENT BULLETIN: California Supreme Court Changes Standard for Classifying Workers as Independent Contractors



On April 30, 2018, the California Supreme Court changed the standard used to determine whether a person is an independent contractor or employee of a company.

The Dynamex Operations West, Inc. v. Superior Court case centered around whether delivery service drivers for Dynamex were independent contractors or employees. For the past 30 years, companies relied on a multi-factor test in California that focused on whether the company had control over the how the work was being completed to classify a worker. Dynamex, also relying on this standard, argued that their drivers were independent contractors because the drivers set their own driving schedules, used their own vehicles, had the ability to decline delivery assignments and could work for multiple companies.

The Supreme Court, however, adopted a new standard in the Dynamex case and ruled that the drivers were in fact employees and allowed the drivers to be certified for a class action lawsuit.

The new “ABC test” will likely make it difficult for companies to classify workers as independent contractors in California because it presumes all workers are employees unless the company can demonstrate that the worker:

A). 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 such work and in fact; and

B). performs work that is outside the usual course of the hiring entity’s business; and

C). is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.

Part A of the test includes similar language from the previous test with respect to control; however Parts B and C impose new restrictions on companies being able to classify a worker as an independent contractor. For Part B, the Supreme Court provided an example that a plumber or electrician who is hired by a retailer to perform maintenance work at a retail store is truly an independent contractor because the work being provided is outside the usual course of the retailer’s business. Part C is designed to identify those workers who have decided to go into business for themselves, regardless of whether the worker has actually formed a separate entity.

With this new standard in place, companies should reevaluate existing agreements with independent contractors to ensure whether these workers are indeed independent contractors under the new ABC test or should now be classified as employees and afforded the benefits of an employee.

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