What is Independent Contractor Misclassification?
Pursuant to the Labor Code, a worker is automatically presumed to be an employee unless the employer can prove that the worker was properly classified as an independent contractor.
What is the “ABC Test”?
An employer may only overcome the presumption that a worker is an employee and not an independent contractor if the employer can prove all of the following: (A) the worker is free from the hiring entity’s control and direction; (B) the worker performs work outside the usual course of the hiring entity’s business; and (C) the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work provided.
What is the “Borello Test”?
The ABC Test applies to most types of work when analyzing independent contractor status. However, there are certain categories of work that require application of the Borello Test. Such work includes bona fide business-to-business contracting, licensed professionals, certain professional services and medical or financial occupations. Under the Borello Test, a multi-factor test governs the independent contractor analysis. These factors include: (a) whether the worker is engaged in a distinct occupation or business; (b) whether, in the locality, the work is usually done under the principal’s direction or by a specialist without supervision; (c) the skill required; (d) who supplies the instrumentalities, tools, and place of work; (e) the length of time for which services are performed; (f) the method of payment, by time or by job; (g) whether the work is part of the principal’s regular business; and (h) whether the parties believe they are creating an employer-employee relationship.
Legal Liability
If your employer has misclassified you as an independent contractor, you may be entitled to unpaid wages, overtime pay, meal and rest period premiums, statutory penalties, and interest.
The content on this website is not legal advice, does not establish an attorney-client relationship, and does not guarantee any particular outcome.
