A friend and colleague, Alan Foster, asked me to write an article for his newsletter regarding independent contractors under Dynamex. I’ve seen articles, presentations and blog posts about the dramatic shift in the law regarding independent contractor versus employee tests. I have a slightly different take. The following is my take on the independent contractor landscape.
Dynamex and the Independent Contractor
Many legal professionals and business advisors are writing about the California Supreme Court “dealing a blow” to independent contractors. Different articles claim Dymanex Operations West, Inc. v. Superior Court “makes it more difficult” for employers to classify workers as independent contractors. Many are calling it a “game changer.” But is it really?
Dynamex, a package delivery company, hired delivery drivers to deliver packages. Although Dynamex initially hired the drivers as employees, in 2004 Dynamex changed the drivers to independent contractors. Dynamex believed it provided drivers sufficient freedom it could safely classify the workers as independent contractors. The delivery drivers filed a class action lawsuit seeking unpaid wages and expenses, claiming they were really employees.
The employees claimed that under Martinez v. Combs (2010) 49 Cal.4th 35, Dynamex was the employer. Dynamex argued that Martinez only applied in the joint-employer situation and that the common law test set out in S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 should apply.
In Martinez, the court adopted a very broad definition of employer based on the IWC orders.
“[t]o employ . . . under the [wage order], has three alternative definitions. It means:
(a) to exercise control over the wages, hours, or working conditions, or
(b) to suffer or permit to work, or
(c) to engage, thereby creating a common law employment relationship.”
Borello and the Independent Contractor
In Borello, decided 21 years before Martinez, the court focused primarily on “whether the person to whom services is rendered has the right to control the manner and means of accomplishing the result desired.” The court also looked at nine other factors:
(1) right to discharge at will, without cause;
(2) whether the one performing the services is engaged in a distinct occupation or business;
(3) the kind of occupation, with reference to whether in the locality the work is usually done under the direction of the principal or by a specialist without supervision;
(4) the skill required in the particular occupation;
(5) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work;
(6) the length of time for which the services are to be performed;
(7) method of payment, whether by the time or by the job;
(8) whether or not the work is part of the regular business of the principal; and
(9) whether or not the parties believe they are creating the relationship of employer-employee.
In a very lengthy (85 pages) opinion, the Dynamex confirmed that Martinez and Borello applied in the independent contractor arena. And the court adopted a new test to determine whether someone was “suffered or permitted” to work. This new test is being called the “ABC test.”
Under the ABC test, a worker is an employee unless the hiring entity establishes:
(A) that 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;
(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 for the hiring entity.
Is This Really a New Test for the Independent Contractor?
Since this is a new test, that means this is a “game changer,” right? Not necessarily. Anyone who has gone through an EDD audit is familiar with the ABC test already. The Employment Development Department has a very useful, although not employer-friendly, test for determining whether someone is an independent contractor. The questions in the DE-38 contain the same factors that make up the ABC test.
Under the DE-38, if the employer answers “yes” to the first three questions, “it is a strong indication that the worker is an employee.” If the employer answers “no” to the next three questions, this “indicates that the individual is not in a business for himself or herself and would, therefore, normally be an employee.” Answering “yes” to the final seven questions on the DE-38 means there is a “greater the likelihood the worker is performing services as an employee.”
So, how does the ABC Test compare to the DE-38? This chart shows the ABC test elements line up directly with the DE-38 test:
| ABC Test | DE-38 |
| (B) that the worker performs work that is outside the usual course of the hiring entity’s business | 3. Is the work being performed part of your regular 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 | 4. Does the worker have a separately established business? |
| (A) that 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 | 5. Is the worker free to make business decisions which affect his or her ability to profit from the work? |
One aspect of the ABC test arguably not in the DE-38 is that the hiring entity must establish each of the three factors in the ABC test. The DE-38 uses phrases such as “strong indication” and “normally,” allowing more leeway than the more definitive ABC test.
The ABC test is less a “new” independent contractor test, and more an application of an existing test that many employers ignored. I have been advising my clients against hiring workers as independent contractors unless the workers have their own established business and the workers are performing work not part of the company’s normal business. Dynamex confirms the conservative approach is the right approach, particularly in California.
Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.
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The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of his practice focuses on wage and hour issues, such as unpaid overtime, meal and rest break violations, designing or enforcing commission plans, and other wage-related claims. He also advises employers on how to avoid harassment and wrongful termination claims, and represents employees who have been victims of unlawful discrimination, retaliation or harassment. The Nuddleman Law Firm, P.C. helps employers develop good employment policies, and helps employers and employees with disability accommodation issues.
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