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‘ABC Test’ for Independent Contractors Set to Take Effect in California Jan. 1

As 2019 draws to a close, every business with a California presence should consider evaluating its workforce in the Golden State to ensure compliance with AB 5, which will be effective Jan. 1, 2020. 

Through AB 5, the California legislature codified and expanded the reach of the so-called “ABC Test” for determining whether a worker should be classified as an independent contractor. This new law expands the reach of the California Supreme Court’s Dynamex decision which applied to coverage under the California Industrial Welfare Commission’s Wage Orders. AB 5 applies this new test to businesses under the California Labor Code and the California Unemployment Insurance Code

Currently, California businesses are subject to a variety of tests of employee status, depending upon the law in question. Under most federal and California laws, the common law agency test applies. For workers’ compensation laws, the California Supreme Court adopted an “economic realities” test 30 years ago in S.G. Borello & Sons v. Department of Industrial Relations.

However, as of Jan. 1, 2020, the default standard for independent contractor treatment will be the ABC Test.

The ABC Test significantly narrows the scope of work for which businesses may classify workers as independent contractors, rather than employees, and expands the application of this new standard to nearly all employers doing business in California. 

Businesses that do not adapt to the ABC Test may face an increased risk of claims from workers asserting that they were misclassified as independent contractors, on an individual and class or collective basis.

ABC Test Explained

Under the ABC Test, a worker is assumed to be an employee unless the business demonstrates:

A. That the worker is free from the control and direction of the hiring entity in performing the work, both in the contract for performance and in fact

B. That the worker performs work that is outside of the usual course of the hiring entity’s business

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

It is Prong B of the test that will likely cause the most difficulty for companies that regularly engage independent contractors. 

Prong B excludes from the assumption of employee status workers who perform duties outside the “usual course of the hiring entity’s business.” While AB 5 does not specifically define the phrase, many businesses use contractors to help them perform their regular business. California courts are expected to be tasked with interpreting the scope of this requirement. 

Many industries lobbied hard to obtain exemptions from the ABC Test. The new statute excludes seven different categories of occupations or business, each with its own separate test for qualifying for the exclusion. These exclusions cover diverse occupations ranging from professionals such as architects and lawyers to non-professionals such as grant writers, tutors, truck drivers, and manicurists. Each category has a slightly different requirement to qualify for the exclusion from the ABC Test. However, qualifying for the exclusion from the ABC Test merely defaults the workers to a determination under the Borello test. Complicating matters further is that for all these occupations, a determination of employee status under federal law, such as under the National Labor Relations Act, likely remains under the common law agency test.

Application and Enforcement

While the California Labor Commissioner is officially tasked with enforcing many of the provisions of AB 5, claims of worker misclassification will more commonly be asserted in private civil actions either individually or on a class basis. In other words, companies will increasingly see independent contractors bring claims for wage and hour law lawsuits or class actions (i.e. overtime claims, meal and rest break claims, wage statement claims, etc.).

Employer Takeaways

Although several industry groups are expected to challenge the new law, businesses operating in California should review and update their practices relative to independent contractors before Jan. 1, 2020 – whether through potentially reclassifying independent contractors as employees or revising independent contractor agreements. 

© 2019 BARNES & THORNBURG LLP

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Scott Witlin Employment lawyer Barnes Thornburg
Partner

Scott J. Witlin is a partner and the administrator of the Labor & Employment Department in the firm's Los Angeles office. He is Co-Chair of the firm's Wage and Hour Practice Group and a member of the firm's Entertainment, Media and Sports Practice Group.

Scott assists companies in dealing with the challenges of employing workers in California and throughout the U.S. Scott's practice includes both traditional labor and employment law matters, including wage and hour class actions, arbitrations, collective bargaining negotiations, compliance with various guild and union agreements...

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John Kuenstler Employment Attorney Barnes & Thornburg
Partner

John dedicates his practice exclusively to the representation of employers in labor and employment and business matters. He counsels and represents a diverse client base on a national and regional basis in virtually all aspects of labor and employment law.

John’s experience includes the defense of single- and multi-plaintiff, collective and class action litigation pertaining to wrongful discharge, discrimination, sexual harassment, retaliation, Title VII, ADA, ADEA, Section 1981, FMLA, FLSA, ERISA, USERRA, WARN and OSHA claims before federal and state courts and administrative agencies. He routinely advocates management’s interests in workplace tort, breach of contract, non-compete, non-solicitation and other restrictive covenant cases. John is skilled in various forms of alternative dispute resolution, helping clients avoid the costs of prolonged legal disputes.

In addition to his litigation practice, John also represents clients at all levels of administrative proceedings, including matters before the EEOC, NLRB, OSHA and DOL. For clients with organized workforces or those striving to remain union-free, John acts as the lead company negotiator for collective bargaining, defends employers in union grievance hearings and arbitrations, helps craft union avoidance campaigns, and provides legal counsel on the range of issues that can arise under the NLRA.

John has ably guided employers through workforce reorganizations, reductions in force, mass layoffs, plant closings, wage and hour investigations, and whistleblower claims, avoiding litigation through proactive responses and creative business strategies. He provides counseling on matters such as employment practice audits, effective human resources strategies and reviewing and drafting employment policies, social media policies, handbooks, employment contracts, independent contractor agreements, employee leasing agreements and severance agreements. To assist in the effective implementation of best practices policies, John provides training and seminars to managers on all matters that impact the employment relationship.

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Mark Wallin, Attorney, BT, Chicago, Labor Employment
Of Counsel

In order to provide the best counsel, Mark Wallin believes it is his role to understand his clients’ business needs so he can help them determine what resolution will provide the most benefit. His keen ability to understand his clients’ practical concerns allows him to advise on the best path to successfully resolve issues – whether through traditional litigation or negotiated resolution.

In the course of his practice, Mark has focused on providing the highest-level of service to his clients and building long-term relationships. Specifically, he defends employers in a wide range of...

312-214-4591
Peter J. Wozniak Barnes Thornburg Chicago  Labor Employment
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Pete Wozniak is a vigorous advocate who strives to help his clients navigate issues that can be fraught with challenges as painlessly and efficiently as possible. He is a candid and personable counselor, offering his clients direct advice by leveraging his deep experience performing a broad range of outcome critical functions for complex labor and employment matters.

Pete represents clients across a number of industries, including transportation and logistics, restaurants, retail, manufacturing, and temporary staffing. Handling a number of high profile matters, he identifies the...

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Kenneth J. Yerkes Employment lawyer Barnes Thornburg
Partner

Chair of the firm’s Labor and Employment Department for two decades, Ken Yerkes has spent over 30 years successfully fighting for his clients' rights and business objectives at the bargaining table, in arbitration and federal and state court, as well as in plants across the country through proactive training, counseling and union avoidance campaigns.

Ken's ability to transform complex scenarios into workable strategies has earned him not only his clients' trust, but also acclaim as one of the country’s recognized leaders in labor and employment law. He is a fellow...

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