INDEPENDENT CONTRACTOR TEST:
THE LEGISLATIVE BATTLE BEGINS

The California Supreme Court in S.G. Borello & Sons, Inc. v. DIR (1989) 48 Cal.3d 341 established that the "balancing test" for determining whether a worker is an independent contractor for workers' compensation purposes by balancing various factors to determine who had the primary right to control the means of work.

Last year, the California Supreme Court ruled in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903 that in determining whether a worker is an independent contractor for purposes of a wage and hour dispute that they would apply a three requirement "ABC Test".To date, Dynamex has been limited to wage/hour disputes, although applicant's attorneys and organized labor are pushing for its adoption in worker's compensation.

Whether California shifts away from the Borello test may be decided by the California Legislature. At the start of the new Session, there are already three (3) competing bills filed which basically propose: 1) Codifying Borello for both work comp and wage disputes (AB 71 - Melendez); 2) Codifying Dynamex for work comp and wage disputes (AB 5 - Gonzalez); or 3) Apply a "contract test" used in some states which requires a written contract between the parties stating the worker is an independent contractor, with the contract containing very specific provisions to be valid (AB 233 - Cooley & Daly). Suspect we may not have a "winner" until the end of the Session...stay tuned.