As you are likely aware, California law on determining employee/independent contractor status changed significantly with the adoption of the “ABC test” in Dynamex by the California Supreme Court last year. This test has been applied retroactively by multiple state and federal courts since then.
The California Labor Commissioner recently issued an opinion letter setting forth the Division of Labor Standards Enforcement’s position that the ABC test also applies to obligations imposed by the Industrial Welfare Commission orders, as well as claims for expense reimbursement under Labor Code section 2802 and potentially waiting time penalties under Labor Code section 203.
If you haven’t already taken a hard look at your classification of workers as independent contractors rather than employees, now is a great time to do so. Please feel free to contact me with any questions.
Christina M. Kotowski, Esq.
Kotowski Law Firm
2601 Blanding Ave. #C386
Alameda, CA 94501
(510) 748-0930 office
(510) 332-5349 mobile
Zap Payroll Note:
The ABC test is an employment-classification test in California that presumes workers are employees rather than independent contractors, was first adopted in April 2018 by the California Supreme Court in Dynamex Operations West, Inc. v. Superior Court. Under this test, the burden is on the employer to demonstrate that every worker is not an employee by proving all three of the following:
The worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact.
The worker performs work that is outside the usual course of the hiring entity's business.
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.