How New California Law AB-5 Reshapes Worker Classifications
On Sept. 18, Gov. Gavin Newsom signed AB-5 into law, drastically altering how millions of Californians are paid and vastly complicating the legal analysis involved in deciding whether workers are properly classified as "employees" or "independent contractors."
While the spotlight of AB-5 has been on the "gig economy," including app-based ride-sharing and delivery companies like Uber, the majority of California businesses will feel the impact of this new law. Businesses or industries that have relied on independent contractors to perform services must revisit, and likely reorganize their business relationships. Economic sectors that are likely to be seriously impacted (and are not currently exempted) include: janitorial services, technology and engineering, instructors, entertainment, exotic dancers and transportation/trucking.
Employers need to re-evaluate their workforces to identify any independent contractors whose work or services may fall under the law's definitions of an "employee." These workers may need to be reclassified as employees from independent contractors in order to mitigate risk and avoid noncompliance penalties.
About the Dynamex Ruling
AB-5 is largely a codification of the California Supreme Court's June 2018 decision in Dynamex Operations West, Inc. v. Superior Court. But has been significantly expanded.
The controversial ruling in Dynamex upended decades of case law that defined who is an employee and who is an independent contractor. In Dynamex, the court adopted the so-called "ABC Test" to determine, under Industrial Welfare Commission's wage orders, when "a person providing labor or services for remuneration shall be considered an employee" rather than an independent contractor.
To establish independent contractor status under this test, employers must satisfy all three of the following prongs:
A) The company must not be able to control or direct what the worker does, either by contract or in actual practice;
B) The worker must perform tasks outside of the hiring entity's usual course of business; and
C) The worker must be engaged in an independently established trade, occupation or business.
There has yet to be any judicial or legislative guidance on prong B of the ABC test, which makes AB-5 even more challenging.
Key Details of AB-5
AB-5 is sweeping legislation that is wreaking havoc on businesses that operate in California. In addition to formally bringing the ABC Test into the rules and regulation of California employment law, AB-5 greatly expands the Dynamex ruling by applying the ABC Test to both the California Wage Orders and the California Labor Code. Dynamex was applicable only to the Wage Orders. (See Lab. Code section 2750.3(a).)
AB-5 significantly complicates the compliance and legal landscape by adding dozens of exemptions from the ABC Test for various professions, "professional services," certain business-to-business relationships and contractor-subcontractor relationships in the construction industry. However, these exemptions do not mean that these professions automatically qualify as independent contractors; rather, the effect of the exemption is to revert an employer back to other established tests for verifying independent contractor status in California.
The new law creates more tests - known as the Borello test, which is for workers that have been exempted from the ABC Test. (The Borello test derives from S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341.)
Professional exemptions include:
Licensed insurance agents
Certain licensed health care professionals (including veterinarians)
Licensed lawyers, architects, engineers, private investigators, and accountants
Registered securities broker-dealers or investment advisers
Direct sales salespeople
The "professional services" exemption has its own criteria and includes the following services:
Certain administrative services of human resources
Certain travel agent services
Services of enrolled agents licensed to practice before the IRS
Payment processing through independent sales organizations
Certain still photography and photojournalism
Certain freelance writing, editing and newspaper cartoon illustration
Certain licensed esthetician, electrologist, manicurist, barber or cosmetologist services
Additional tests, each with up to a dozen independent criteria, must be satisfied for "bona fide business-to-business contracting relationships." This includes certain construction contractor-subcontractor relationships, certain referral agency and service provider relationships and certain relationships between a motor club and an individual performing services pursuant to a contract between the motor club and a third party. If any of these independent tests are satisfied, the hiring business entity still needs to show that the relationship passes muster under the Borello test.
AB-5 also provides that it is "declaratory of existing law" with regard to the wage orders, meaning it is the legislators' intent that this test be applied retroactively, as though it had always been in effect.
Implications for California Employers
The seismic shift of AB-5 requires the need to overhaul of their business-employee relations. For example, independent contractors now classified as employees under AB-5 will no longer have the freedom to work when, where, and how they want. These "new" employees under this law will be subject to the hiring entity's policies, scheduling, and supervision. Employers will have to include former independent contractors into their workforce as employees, and engage in the administrative burden of ensuring compliance with all of California's employment laws, including minimum wage, overtime, paid time off, employee benefits as required by law, meal periods and rest breaks, and anti-discrimination and retaliation laws that do not apply to independent contractors.
AB-5 is also significant in that employers are required to cover employees under Workers' Compensation Insurance, as well as reimburse employees for "necessary expenditures or losses incurred by the employee" in carrying out job directives or employer directives. It is yet to be seen how employee breaks, reimbursements, business expenses, or other traditional employee functions can even be reliably tracked or monitored, particularly for gig-economy workers.
While AB-5 is officially on the books, we anticipate numerous challenges to the law, and it remains to be seen exactly how the test will be applied by the courts.
Going forward, California employers have a choice. They may continue business as usual and risk being the test case on how the ABC Test is interpreted by the courts, or hope that ongoing challenges and lobbying efforts will eventually exempt their industry.
A less risky and more practical strategy is to take immediate action to ensure compliance with AB-5 starting now. Employers should evaluate their workforce and identify any independent contractors that may not satisfy the ABC Test. If any independent contractors fail the ABC Test, the employer should change its business model to either eliminate the contractors all together or reclassify them as employees (and hopefully in a way that differs from the prior contractor model to limit the risk of retroactive liability).
If you have employees that get reclassified, these workers should be provided:
Required California and employer onboarding forms
Employee benefit enrollment information as required by law
Set-up on payroll in accordance with the Labor Code
Formal review of employer’s policies and procedures
Your HR professional should review all policies and handbooks to ensure that they are in line with California law and AB-5 and your legal council should update your independent contractor agreement.
For any additional clarification or questions regarding AB-5, we recommend that you contact your labor law council and your HR professional.
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