What Is an Independent Contractor in California?

The idea of independent contractors has become more common as the gig economy has grown. However, just what constitutes an independent contractor, particularly in the context of California’s intricate legal system? For both individuals and corporations, understanding this classification is essential because misclassification can result in expensive fines and legal issues.

The Importance of Proper Classification

Classifying a worker as an independent contractor or an employee has far-reaching implications in California. It determines:

  • Tax obligations: Employers must withhold and pay taxes for employees rather than for independent contractors.
  • Eligibility for benefits: Employees are entitled to unemployment insurance, workers’ compensation, overtime pay, and minimum wage, while independent contractors are not.
  • Labor law protections: Employees are protected by various labor laws, such as anti-discrimination and wage and hour laws. Independent contractors generally need these protections.

Defining an Independent Contractor in California

Historically, California relied on a multi-factor test known as the Borolo test to determine worker classification. However, in 2019, California enacted Assembly Bill 5 (AB5), codifying the stricter “ABC test” for most industries.

The ABC Test

If the employing party may create all three conditions, the ABC test will assume the employee is an employee:

  • A. Free from control and direction: Workers work without significant control or direction from the hiring entity, both contractually and in practice.
  • B. Work outside the usual course of business: The worker’s services fall outside the ordinary course of the hiring entity’s business.
  • C. Customarily engaged in an independent trade: The worker is customarily engaged in an independently established trade, occupation, or business of the exact nature of the work performed for the hiring entity.

Understanding the ABC Test in Detail

  • Part A: Control and Direction Courts in California take a broad view of “control.” They look beyond direct orders and examine whether the company has the right to control how the work is done, even if it doesn’t always exercise that right.
  • Part B: “Usual Course of the Hiring Entity’s Business” A plumber hired by a plumbing company likely fails this part. Depending on other factors, a plumber hired by a tech company to fix their office bathroom might pass.
  • Part C: Independent Trade, Occupation, or Business :- This part examines whether the individual operates an established business, whether they advertise their services, and whether they have other clients. Holding multiple part-time gigs might not meet this standard.

Exemptions from AB5

AB5 provides certain limited exemptions. Some of the professions exempt from the ABC test include:

  • Doctors, dentists, lawyers, and other licensed professionals
  • Insurance agents
  • Real estate agents
  • Direct salespersons
  • Certain freelance writers and photographers

Misclassification and Consequences

Misclassifying an employee as an independent contractor can have severe consequences for businesses in California, including:

  • Lawsuits from misclassified workers seeking back wages, benefits, and damages
  • State investigations and audits
  • Tax penalties
  • Damage to the business’s reputation

Best Practices for Businesses

To minimize the risk of misclassification, businesses should:

  • Carefully evaluate the nature of the work relationship: Consult with legal counsel if in doubt.
  • Draft clear contracts: Contracts should outline the independent contractor relationship, including factors demonstrating the worker’s independence.
  • Avoid excessive control: Give independent contractors the freedom to determine the methods and means of completing work.

Seek professional guidance: Consult with attorneys specializing in labor law to ensure compliance.


Understanding independent contractor classification in California is a complex undertaking made even more complicated by AB5’s strict requirements. Businesses and individuals must navigate this legal landscape carefully to ensure compliance and avoid costly penalties for misclassification. By following best practices and seeking professional advice, companies can engage with independent contractors confidently while protecting themselves and their workers.

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