For most workers, you should be considered an employee under California law unless your employer can answer “yes” to all of the following three questions:
- Is the worker free from the employer’s direction and control in connection with the performance of the work?
- Is the worker doing work that is not part of the usual course of the employer’s business?
- Is the worker customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed?
If the answer to any of those questions is “no,” than the worker is an employee.
This test, called the “ABC” test, applies to most, but not all, low-wage workers, including workers in the following industries: janitorial, housekeeping, domestic industries, restaurants, retail, warehousing. And most low-wage workers should be classified as employees under this test.
Some types of workers need to apply a different test, called the Borello test, including doctors, lawyers, and certain providers of professional services. Other workers, including direct sales salespersons, and licensed barbers, manicurists, cosmetologists, and estheticians, and certain construction industry subcontractors, may have to apply the ABC test or the Borello test depending on different characteristics of their employment.
Certain app-based ridesharing and delivery workers are considered independent contractors under Proposition 22, but have certain limited additional benefits. For a gig worker to qualify as a contractor under Proposition 22, the company hiring the worker must allow the worker to reject specific ridesharing or delivery requests, must not require a minimum number of hours on the company’s platform, and must allow workers to perform ridesharing and delivery services for multiple platforms.
 Under the Borello test, a worker is an employee if the employer “right to control the manner and means of accomplishing the result desired.” A court will look at a number of factors to answer this question, including whether the employer (a) controls the location of the work, (b) controls the hours worked, (c) provides tools for the work, and (d) was able to discharge workers at will. The court will also be more likely to find that a worker is an independent contractor if (1) the type of work is normally done by independent contractors, (2) the work requires a special skill, (3) the work is usually done by a specialist without supervision, (4) the work is “a distinct occupation or business,” (5) the work was paid by the job, not by the hour, and (6) the work is not a core or integral part of the employer’s business.