DOCUMENTS SUPPORTING INDEPENDENT CONTRACTOR STATUS
At the California Self-Insured Annual Conference last month, our firm's president H. Neal Wells IV provided a presentation focused on the documentation needed to prove someone is an independent contractor (IC) for jobs exempted from the "ABC Test", and instead apply the old Borello "Control Test" plus some additional specific requirements. The documentation that can help fulfill the requirements typically fall into two categories: the worker's legal qualifications (licenses), and confirmation the worker operates a business distinctly separate from that of the hirer (own business costs, insurance and written contract).
a) GOVERNMENT REQUIRED TRADE LICENSES: No matter which test applies (ABC or Borello), an individual must possess any required trade-related license to be deemed an IC. This can include state licenses for contractors, cosmetologists, psychologists, dental assistants, as well as the correct drivers license class for truck or bus drivers; and sometimes federally issued licenses (i.e. pilot, securities broker-dealer, patent attorneys/agents). A quick search for an individual's CA license status can be found at the California Dept. of Consumer Affairs (DCA) or the specific certifying agency (i.e. www.cslb@ca.gov.com for contractors).
b) LOCALLY REQUIRED BUSINESS LICENSE: Must have a business license from the IC's home base city (or county if in an unincorporated area). Some cities will call the business license a "tax certificate". Note the document is typically the itemr most businesses are required to post in public view, usually in the reception area.
c) SEPARATE BUSINESS LOCATION: Some of the ABC Test exempted jobs require proof of the subcontractor having a business location which is clearly separate from the hirer, which arguably could be satisfied with a business license, contractor's license, tax certificate, or even a utility bill.
d) WORKERS' COMPENSATION POLICY: Unless the worker is exempt from having a workers' compensation policy due to having zero employees at the work site, they must have a workers' compensation policy from a carrier approved to sell policies in California. Do not accept a one-page "Certificate of Liability Insurance (aka COLI) as proof of insurance because that document can be easily faked and is commonly used by illegally uninsured entities; instead, demand a copy of the actual policy. Additionally, coverage can be quickly checked for free through websites such as the WCIRB's www.caworkcompcoverage.com and the CA Contractors State License Board's www.cslb@ca.gov.com.
e) WRITTEN CONTRACT: A verbal agreement of understanding is insufficient. There must be a written contract between the parties that provides the particulars of the project (i.e. service provider supplies the tools and materials, sets the hours, confirms the pay rate, and confirms the mutually desired outcome.)
[COMMENT: This is not an all-inclusive list, but highlights the type of forms that are frequently required by statute to confirm a hired entity was intended to be a legally legitimate independent contractor.]
