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  • Cameron Gharabiklou

Wrongful Misclassification of Employees

The California Supreme Court modifies the analysis of whether a worker is an Employee vs. Independent Contractor

In April 2018, the California Supreme Court adopted a new standard in the determination of whether a worker is an employee vs. independent contractor. Seeking clarity and consistency, the court in Dynamex Operations West, Inc. v. Superior Court, found the analysis known commonly as the 'ABC' test, utilized by other states, was the appropriate manner in which to determine the appropriate classification of a worker.

The ABC test presumes all workers are employees unless the employer can show: (A) 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 and in fact; and (B) the worker performs work that is outside the usual course of the hiring entity’s business; and (C) the worker is customarily engaged in an independently established trade, occupation or business of the same nature as that involved in the work performed.

While the adoption of the ABC test doesn't supercede the prior multi-factor test outlined in 1989 case of S.G. Borello & Sons, Inc. v. Department of Industrial Relations, it does give greater weight to a few specific factors.

A worker who has been wrongly misclassified is privy to a variety of damages, including but not limited to, unpaid overtime, benefits reimbursement, tax reimbursement, meal and rest break compensation and more.

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