Independent Contractor v. Employee. The “ABC Test” Does Not Include a Threshold Hiring Entity Test

Construction worker walking through site

Mejia v. Roussos Construction, Inc. answers whether the “ABC test” requires a worker-plaintiff to prove that they were hired by the defendant-hirer in the first place.

October 3, 2022
Garret Murai - California Construction Law Blog

In 2018, in Dynamex Operations West, Inc. v. Superior Court, 4 Cal.5th 903 (2018), the California Supreme Court overturned nearly thirty years of jurisprudence governing the manner in which workers are classified as employees or independent contractors. The Dynamex decision replaced the “Borello test,” derived from a case of the same name, S.G. Borello & Sons, Inc. v. Department of Industrial Relations, 48 Cal.3d 341 (1989), in which the California Supreme Court at the time set forth a variety of factors to be considered when determining whether a worker was an employee or independent contractor.

The Dynamex decision replaced with the “Borello test” with the “ABC test.” Under the ABC test, a worker can be deemed an independent contractor if three conditions are met:

  1. The worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;
  2. The worker performs work that is outside the usual course of the hiring entity’s business; and
  3. The worker is customarily engaged in an independent established trade, occupation, or business

Mr. Murai may be contacted at gmurai@nomosllp.com



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