ABC Test for Independent Contractors

California Lawyers Asserting the Rights of Employees

California workers receive many different protections and benefits under federal and state laws. Among these protections, the law presumes that you, as a worker, are an employee. Your employer cannot simply label you an independent contractor or transform you into an independent contractor by having you sign an agreement that designates you as such. However, figuring out whether you have been misclassified for the purpose of determining whether your rights to be paid a minimum wage and overtime have been violated can be confusing and difficult to determine. If you are concerned about the ABC test for independent contractors, you should discuss your situation with the seasoned California wage and hour lawyers at The Nourmand Law Firm.

Why the ABC Test for Independent Contractors Matters

Employees have substantial protections under the law. Among various protections, they must be paid a minimum wage and overtime, and they must receive workers’ compensation benefits as legally required. Your employer cannot remove your status as an employee by having you sign a contract that specifies that you are an independent contractor.

California follows the ABC test. Under the test, you are considered an employee of a company rather than an independent contractor, except when the company can prove all the following elements:

• You are not being controlled or directed by the company with regard to the performance of the work.
• You perform work outside the ordinary course of the company’s business.
• You customarily engage in an independently established trade, business, and occupation of the same kind as the one involved in your work for the company.

Control in the Performance of Your Work

Your California employer will need to establish that you are free from its control in order to meet the first element of the ABC test. If you are subject to the type and degree of control that a business usually exercises over employees, you will be considered an employee. The business for which you work does not need to control the precise way that you do the work or the details of the work to be found to have kept the control needed over its employees. For example, if a company asks you to shape fondant decorations for cakes from home as an independent contractor and provides you with recipes and instructions on how to do it, a court may find that the company exerted control over your work.

Do You Perform Work Outside the Company’s Business?

Your employer will need to demonstrate that you performed work outside the usual course of business in order to fulfill the second element of the ABC test. Services would not be considered part of the company’s usual course of business, for example, if you were hired as an electrician to repair some lighting at a mall.

Do You Have an Independently Established Business?

If you were customarily and are currently engaged in an independently established business, occupation, or trade, the company may be able to demonstrate that you were an independent contractor rather than an employee. Thus, for example, if you incorporate your separate business or you take out advertisements, a company for which you work may be able to show that you are an independent contractor, and therefore you are not entitled to minimum wage or overtime protections.

When Does the ABC Test Not Apply?

The ABC test may not apply in certain situations, which is one reason why it is critical to retain an experienced employment lawyer to pursue your claims. The specific language of the IWC wage orders, the Labor Code, and the Unemployment Insurance Code must be interpreted in harmony with the ABC test, as well as the facts of your particular case, to make a reasonable prediction about how a court might view your case.

Consult an Employment Law Attorney in California

If you want to know how you would be classified under the ABC test for independent contractors, you should consult our seasoned California lawyers. The Nourmand Law Firm represents clients in Los Angeles, San Bernardino, and Riverside Counties, as well as Oakland, Sacramento, and other areas of California. You can complete our online form or give us a call at 310-553-3600 or 800-700-WAGE (9243).