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Am I an Employee or an “Independent Contractor” under California law?

When a business needs additional help it has two options, it can hire an employee or it can hire another business. Additionally, some businesses only comprise a single person who provides specialized services. These one-man businesses may be referred to as “Independent Contractors.” When a business hires an employee, he or she is subject to California’s labor laws. Independent contractors are not. This creates an incentive for dishonest businesses to mislabel their employees as independent contractors. For more information about California Labor laws, click here.

Under California law, determining whether an individual is an employee or an independent contractor is different the corresponding federal standard. In its 2018 decision, Dynamex Operations West, Inc. v. Superior Court, the California Supreme Court adopted the “ABC test,” for differentiating an employee from a contractor. Under the ABC Test, a worker is presumed to be an employee unless the employer can show that all three of the following conditions are satisfied:

  • the worker is free from the control and direction of the hiring entity in connection with the performance of the work;
  • 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 that involved in the work performed.

It is the second condition that may be the most important: a business cannot take portions of its work force, working on critical aspects of the business, and reclassify them as contractors. For example, a tutoring company cannot make its tutor’s independent contractors. But, that same tutoring company make be able to outsource its payroll to an outside contractor.

Note: that individuals are presumed to be an employee unless the ABC test is meet. This means it is for the employer to show that person is an independent contractor, not the employee.

Important Note: Certain app-based drivers are considered independent contractors despite the ABC test, for more information regarding app-based drivers click here.

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Sommers Schwartz has appeared in CNN, Today Show, ClickOnDetroit, NBC News, and ABC

Working with Tad Roumayah

I can’t say enough good things about working with Tad Roumayah. From our very first conversation, he was attentive, straightforward, and genuinely invested in getting the best outcome for my case. He took the time to explain everything clearly, answered my questions (even the ones I asked more than once)…

Praise for Alexis Amy and Tad Roumayah

I am very happy with the settlement Sommers Schwartz obtained for me in my age and disability discrimination case.Tad Roumayah and Alexis Amy explained every step of the process and answered all my questions along the way.I highly recommend this law firm!

I Cannot Say Enough Good Things About This Law Firm and My Attorney, Matthew G. Curtis.

I cannot say enough good things about this law firm and my attorney, Matthew G. Curtis. From the very beginning, their professionalism, communication, and attention to detail stood out immediately. They kept me informed throughout the entire process, answered my questions promptly, and always made me feel like a priority…

From a Wayne State Medical School Student About Judy Susskind

Law & Medicine was truly one of my favorite rotations – seeing a trial and learning from you was a privilege. Medical students are so lucky to have such an incredible preceptor for this experience. Your firm, colleagues, and clients are lucky to have you. (From a Wayne State University…

Praise for Tad Roumayah and Nathan Robbins

Tad Roumayah and Nathan Robbins are very professional and knowledgeable. They took charge from beginning to end with my employment case. I highly recommend them.

A Recommendation for Matthew Curtis and David Black

I highly recommend Matthew Curtis and David Black. They represented me in a legal malpractice case and did an outstanding job. They were very responsive, organized, efficient, and easy to work with throughout the entire process. What I appreciated most was that they were willing to take my case when…

Thank You, Jason Thompson

I just wanted to say thank you, Jason. The amount of work that you have done is astronomical, and it hasn’t gone unnoticed. We’ve always felt that you do what you say, take responsibility for your actions, even when you’re wrong, and that your word is your bond. (We found…

Heartfelt Thanks to Judy Susskind

Judy, I wanted to inform you that my mother passed away last night after losing a painful battle. She wanted me to specifically contact you and thank you for what you did for her. You took a chance and stood by her when no one else would, and you helped…

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