Archive | May, 2018

Check Out How The New CA Wage & Hour Independent Contractor Ruling Affects You

14 May
A new wage and hour California State Supreme Court (CSC) ruling – defines persons to be employees and not independent contractors.  The groundbreaking CSC new decision reveals a significant change in independent contractor law that adopts a modified “A-B-C” test for determining whether an individual is an employee under the Wage Orders.  The new independent contractor test is modeled on Massachusetts’ independent contractor statute, which has been considered the strictest in the country.

New Independent Contractor Test

California courts and state agencies have long applied the Borello test for determining whether a worker was an independent contractor under the Industrial Welfare Commission Wage Orders.  This flexible, multi-factor approach determined whether the hiring entity had a “right to control” the manner in which the worker performed the contracted service, along with eight “secondary” factors whether: the worker was engaged in a distinct occupation or business the skill required in the particular occupation, or the worker or the hiring entity supplied the tools used to perform the work and the place where the work was performed.

Despite the Borello test being used for decades for Wage Order cases, the CSC rejected it in favor of a more rigid three-factor approach, called the “A-B-C” test.  Under this new test, a person is considered an independent contractor only if the hiring entity can prove all three of the following:

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 of the same nature as the work performed.
The “A” prong (freedom from control and direction) is similar to the common-law test used in Borello, asking whether the person is free from the “type and degree of control a business typically exercises over employees.”  The “B” prong (outside the usual course of the business) focuses on whether the person is “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.”

But, the “C” prong (independent trade, occupation, or business) asks whether the person “independently has made the decision to go into business for himself or herself,” evidenced by things such as “incorporation, licensure, advertisements, or routine offerings to provide the services of the independent business to the public or to a number of potential customers.”  While presenting limited substantive guidance, the Court made it clear that it intended this new A-B-C test to be stricter than the previous Borello test.

This new independent contractor test only applies to Industrial Welfare Commission Wage Orders.  The CSC did not make any rulings about whether this test would also apply to other wage and hour laws – such as claims for reimbursement for business expenses, but the opinion suggests such laws will remain subject to the Borello standard.

The Narrow ‘B’ Prong

Many states use A-B-C independent contractor tests, often in their unemployment compensation statutes.  The A and C prongs that the CSC announced are comparable to these other tests.  However, the B prong deviates from the norm in an important way.  Most B prongs allow two different ways to prove that a worker is an independent contractor: either by showing that he or she works (1) outside the usual course of the business or (2) outside all the places of business of the hiring entity.  The CSC’s new test purposefully omits this second clause (i.e., “outside all the places of business”), meaning that the only way to satisfy the B prong – and, thus, the only way to be an independent contractor – is for one’s work to fall outside the usual course of the hiring entity’s business, regardless of where the work occurs.

The CSC explicitly copied the Massachusetts statute in crafting this new test.  To satisfy the B prong, the hiring entity must show that the person works in an “independent, separate, and distinct business from that of the employer.”  Said differently, the question is then “whether the service the individual is performing is necessary to the business of the employing unit or merely incidental.”  As a practical matter, for most companies, this narrow B prong works as a “de facto ban,” and prevents the use of independent contractors except where the person’s work has no tangible connection to the hiring entity’s business.


For some transportation companies, courts have held that the Massachusetts B prong is preempted by the Federal Aviation Administration Authorization Act (FAAAA) and is therefore unenforceable. Some Massachusetts courts have also held that “legitimate business-to-business” relationships can qualify for independent contractor status, even if the other “business” is a sole proprietor or one-person corporation.


It remains undecided how California courts will apply this new independent contractor test, or if the standard or its application will be limited by federal law when applied to certain arrangements involving motor carriers of property.  Companies should now expect more difficulty in proving that an individual is classified as an independent contractor under California wage and hour laws.

Although technically this ruling only applies to Industrial Welfare orders – including minimum wage, rest breaks, meal periods and overtime – the impact
is really much broader.  Many CalWorkSafety clients will find it difficult to
sustain the idea of independent contractors as fulfilling their business operations.  We can and will assist in evaluating each instance for you. 
The Bottom Line:
From Now on It’s Going to Be More Limited & Dangerous to Try
to Claim Independent Contractor Status in California

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