Effective January 1, 2021, California workers will have expanded protection for crime victim-related leaves. Assembly Bill (AB) 2992.

Labor Code section 230 currently prohibits any employer, regardless of size, from terminating, discriminating or retaliating against an employee who is a victim of domestic violence, sexual assault, or stalking, for taking time off to obtain or attempt to obtain court-related “relief” stemming from such crimes (for example, restraining orders). Labor Code 230.1, applicable to employers with 25 or more on payroll, further includes medical, shelter, counseling services and related prevention action as qualified “relief” time.

Unless not possible under the circumstances, an employee must give reasonable advance notice of the need to take such time off. A worker must provide management within reasonable time a satisfactory written certification establishing the need for any unscheduled absence, including a police report, court order, or a medical or counseling attestation.

An employee may file a complaint for claimed violation with the Division of Labor Standards Enforcement. It is a misdemeanor for an employer to refuse to rehire, promote, or restore a worker determined by a grievance procedure or legal hearing to be eligible for such rehiring, etc.

Current law does not state who is a “victim” protected against such adverse employer action. Revised sections 230 and 230.1 provide specific definitions:

• a victim of stalking, domestic violence, or sexual assault;
  
• a victim of a crime that caused physical injury or that caused mental injury and a threat of physical injury;
  
• a person whose immediate family member is deceased as the direct result of a crime; or
  
• a victim of a crime compelled to testify on the matter

Rather than just domestic- and sex-related offenses, “crime” for which such leave protection is justified will now include any California-prohibited misdemeanor or felony and any federally prohibited act of terrorism against any state resident wherever that act may have occurred.

In addition to police, medical or counseling documentation, the expanded law includes a catch-all category for the required certification confirming the need for any unscheduled absence: any other writing that reasonably verifies that the crime or abuse occurred.

See also:
:

• Give Me a Break! - Time Off for Fire Fighting, Crime Victims, Drug Rehab, School Visits, and More. (June 22, 2018)
  
• Helping the Haunted – California Employers Must Accommodate Victims of Domestic Violence, Sexual Assault or Stalking. (July 7, 2017)

For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Tim Bowles
October 15, 2020

Out of Sacramento’s political process has come passage of AB 2257 and new Labor Code 2778, effective September 4, 2020, providing a broader list of professional services exemptions from the rigid “ABC” test for independent contractor classification. See, Bullet Dodging Part 2 - California’s “Professional Services” Exemption To Strict Independent Contractor Definition; Licensed Beauticians Among the Eligible (October 2019).

The earlier AB 5 version did not clearly define who qualified as a “fine artist” under this exemption. The revised law now defines the term as “an individual who creates works of art to be appreciated primarily or solely for their imaginative, aesthetic, or intellectual content, including drawings, paintings, sculptures, mosaics, works of calligraphy, works of graphic art, crafts, or mixed media.”

Under Labor Code 2778’s broader exclusions from the strict ABC criteria, still photographers, photojournalists, videographers, and photo editors who do not work on motion pictures (e.g., “theatrical or commercial productions, broadcast news, television, and music videos”), and digital content aggregators who assist them, are no longer limited to 35 submissions per year to a single business as in the AB 5 version, but:

• must have a “written contract that specifies the rate of pay and obligation to pay by a defined time”;
• may not be “directly replacing an employee who performed the same work at the same volume for the hiring entity”;
• may not be performing the work principally “at the hiring entity’s business location”; and
• may not be “restricted from working for more than one hiring entity.”

Labor Code 2778 also exempts freelance writers, editors, and newspaper cartoonists from the 35 maximum submissions per client requirement of AB 5, and adds to their ranks translators, copy editors, and illustrators. Their contracts are also subject to the bullet points above and must address the intellectual property rights.

The new law also adds several professions performed by an individual: “content contributor, advisor, producer, narrator, or cartographer for a journal, book, periodical, evaluation, other publication or educational, academic, or instructional work in any format or media,” subject to the same requirements as the writing professions in the preceding paragraph.

Also exempt are:

• “A specialized performer hired by a performing arts company or organization to teach a master class for no more than one week”;
• Appraisers;
• Licensed and registered professional foresters;
• Real estate licensees (with special provisions as to workers compensation and unemployment insurance requirements);
• Home inspectors; and
• Licensed repossession agencies “free from the control and direction of the hiring person or entity in connection with the performance of the work, both under the contract for the performance of the work and in fact.”

Under the new law, while they are still required to have a business licenses if required in the jurisdiction, all professionals have a breathing period of six months from September 4, 2020 – the effective date of AB 2257 – to obtain those licenses.

See also:

• California’s Newest Independent Contractor Law Part 2 - Revised Referral Agency Exception (September 24, 2020)
• California’s Newest Independent Contractor Law Part 1 – Revamped Business-to-Business Exceptions (September 17, 2020)
• Gagging the Gigs, Plan B – California Remodels Exceptions to Its Strict Independent Contractor Test (September 11, 2020)

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin
October 10, 2020

In response to a recent New York court ruling more favorable to employees, the Department of Labor (DOL) reaffirmed, revised and/or further explained the Families First Coronavirus Response Act (FFCRA) rules and frequently asked questions. Effective September 16, 2020 the regulations clarify:

• Leave Available Only When Work Available: Any type of FFCRA leave may be taken only if work would otherwise be available. Thus, an employee may not take FFCRA leave if the employer has temporarily or permanently ceased certain operations or is forced to furlough the worker for legitimate business reasons. See, 29 Code of Federal Regulations section 826.20.
• Approval Required for Intermittent Leaves: Employer approval will be needed for taking intermittent FFCRA leave. See, 29 Code of Federal Regulations section 826.50.
• Who is a “Health Care Provider” for Whom Leave May be Unavailable? Although the FFCRA permits “health care providers” to deny FFCRA leave to their employees, the New York court rejected the DOL’s broad inclusion of healthcare workers indirectly involved in health care delivery. The DOL now redefines “healthcare provider” to those who either meet the definition of that term under the Family and Medical Leave Act (FMLA) regulations (i.e., a licensed doctor, nurse practitioner, or other health care provider permitted to issue an FMLA certification); or provide direct diagnostic, preventative or treatment services or other integrated services necessary to the provision of patient care which, if not provided, would adversely impact patient care (e.g., nurses, nurse assistants, and medical/laboratory technicians). See, 29 Code of Federal Regulations section 826.30.
• Who is Not a Health Care Provider? Specifically, a “healthcare provider” does not include IT professionals, building maintenance staff, HR personnel, cooks/food services workers, records managers, consultants and billers, even if they work at a hospital or other health care facility. See, revised DOL FAQ No. 56.
• Required Notice and Documentation to Qualify for Leave: Employees must provide their employers with required notice and documentation substantiating the need for FFCRA leave as soon as practicable. See, 29 Code of Federal Regulations section 826.90.

In its September 11 press release, Wage and Hour Administrator Cheryl Stanton stated, “As the economy continues to rebound, more businesses return to full capacity, and schools reopen, the need for clarity regarding the Families First Coronavirus Response Act paid leave provisions may be greater than ever…. Our continuing robust response to this pandemic balance support for workers and employers alike, and remains our priority.” Thus, employers should review existing policies and procedures to confirm compliance with the revised regulations.

See also:

• Over the Horizon - Broader “Worker-Friendlier” COVID Leave Criteria? (August 21, 2020)
• Paid Sick Leave Going Viral – California Cities and Counties Expanding Pandemic-Related Benefits (May 29, 2020)
• It’s a Wash – COVID 19 Paid Leave and Tax Credits (April 9, 2020)
• Federal Coronavirus Workplace Relief - New Paid Sick Leave, Family Leave and Tax Credits Effective April 2, 2020 (March 23, 2020)

For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth
October 8, 2020

Sacramento continues to equip the state’s Division of Occupational Safety and Health (Cal/OSHA) with expanded powers in these days of COVID. Assembly Bill (AB) 685 (Labor Code 6325(b)), effective for two years from January 1, 2021, enables the agency to shut down any business operation or place of employment when, in Cal/OSHA’s “opinion,” that venue poses a COVID-related “imminent hazard” to such operations or workforce.

There are some boundaries:

• Cal/OSHA’s power is limited to “the immediate area in which the imminent hazard exists”; the agency may not prohibit operations or access to portions of a workplace “which is not exposing employees to, or is outside such area of imminent hazard”;
• Cal/OSHA may not apply this power if it would “materially interrupt the performance of critical government functions essential to ensuring public health and safety functions or the delivery of electrical power or water” (e.g. Cal/OSHA can’t shut itself down for any such hazard); and
• The agency has no power to prevent entry to or use of such a condemned venue for the sole purpose of eliminating the dangerous conditions.

Cal/OSHA regards any hazardous condition or practice “imminent” “which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of the hazard can be eliminated through regular Cal/OSHA enforcement procedures.” Since the law only requires the agency’s “opinion” on the matter, apparently Cal/OSHA will know – and be trusted to know -- an imminent hazard when it sees one.

Suffice to say this new power should motivate continued effective commercial pandemic prevention and control actions to prevent and limit workplace infection to absolute minimums.

See also:

• Pandemic Police on Patrol-Cal/OSHA Hitting Employers Statewide for COVID-19 Non-Compliance (September 10, 2020)
• COVID’s Constant? …Change - E.E.O.C.’s Expanded Guidelines on Screening, Testing and Pandemic Management (September 18, 2020)
• Update California COVID Plan B- “Blueprint” Workplace Return Improving Conditions Statewide (September 25, 2020)

For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Tim Bowles
October 2, 2020

Effective September 4, 2020, Assembly Bill (AB) 2257 and Labor Code section 2777 broaden the “referral agency” exception to the state’s strict “ABC” definition of independent contractors.

A referral agency is a “business that provides clients with referrals for service providers to provide services under a contract,” other than the specific services excepted under section 2777.

Service providers are sole proprietors or business entities that “agree to the referral agency’s contract and use the referral agency to connect with clients.”

A client contracting services from a referral agency may be an individual or a business contracting for services that its employees do not usually provide and that are not within its usual course of business.

Referral agency services eligible for exemption from the rigid ABC test “include, but are not limited to, graphic design, web design, photography, tutoring, consulting, youth sports coaching, caddying, wedding or event planning, services provided by wedding and event vendors, minor home repair, moving, errands, furniture assembly, animal services, dog walking, dog grooming, picture hanging, pool cleaning, yard cleanup, and interpreting services.” Section 2777 provides definitions for tutor, youth sports coaching, interpreting services, consulting, and animal services.

The highlighted language means that other businesses may also qualify for the referral exemption, in contrast with the AB 5 version that limited the exceptions to an enumerated list of businesses.

However, the new law explicitly excludes from exemption “referrals for businesses that provide janitorial, delivery, courier, transportation, trucking, agricultural labor, retail, logging, in-home care, or construction services other than minor home repair” or OSHA or Department of Industrial Regulations high-hazard occupations.

The exemption is available to sole proprietors or business entities operating a referral agency that:

• Does not control the service provider’s work both factually and under the contract;
• Requires service providers to certify they have any required business or professional license or tax registration (referral agency must keep the documentation for three years);
• Has the service providers deliver the services under their own names, not that of the referral agency;
• Has the service providers set their own rates, with the right to accept or reject any rate and negotiate those through the referral agency or directly with the client; and
• Has service providers set their own hours with the client receiving the work.

Other requirements are:

• In contrast to the AB 5 exception, the service provider must only be customarily engaged or was previously engaged in an independently established business or trade; such provider is also no longer required to have a separate clientele but still must be free to work for other clients and agencies; and
• A service provider must have his/her/its own tools and supplies, and if required for the type of work, hold its own license from the Contractors State Licensing Board.

For any referral agency that qualifies for the exemption, the less-stringent Borello balancing test will govern whether a referred service provider is a contractor or an employee.

See also:

• California’s Newest Independent Contractor Law Part 1 – Revamped Business-to-Business Exceptions (September 17,2020)
• Gagging the Gigs – California Remodels Exceptions to Its Strict Independent Contractor Test (September 11, 2020)
• Back From the Brink – For Now – Uber and Lyft’s Last-Minute Reprieve From Order to Convert Drivers to Employees (August 27, 2020)
• Making Dynamex Retroactive – Federal Appeals Court Rules New Independent Contractor ABC Test Applies Before It Existed (May 31, 2019)
• Independent Contractor or Employee? – California Legislature Dealing with Competing Proposals to Kill or Expand New Dynamex Test (April 19, 2019)
• Independent Contractor Status? It Depends – Radically New Dynamex Test Only Applies to Certain Employee Classification Cases (November 9, 2018)

For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin
September 24, 2020

The Americans with Disabilities Act (ADA) includes an employee’s right to maintain the privacy of his or her medical information notwithstanding any ailment that might limit that person’s ability to perform essential job functions. However, the pandemic’s new “abnormal” quickly led the federal Equal Employment Opportunity Commission (EEOC) to relax those ADA confidentiality restrictions in the interest of thwarting widespread workplace disease transmission. See, Infection Protection; What an Employer Can Ask in a Pandemic (March 25, 2020).

From the past six months of fielding the public’s confusions over the agency’s initial guidelines, the EEOC has published a greatly expanded technical assistance, “What You Should Know About the ADA, the Rehabilitation Act, and COVID-19” (September 8, 2020) (New COVID Circular).

Roughly twice the length of the preceding version, this updated circular includes key direction, including for example:

• Continuing Workforce Testing: An employer may administer COVID-19 testing to screen workers initially entering the workplace as well as to regularly monitor possible infection among the workforce. New COVID Circular, section A.6. The EEOC’s previous approval of worker testing was limited to initial workplace entry only.
• Test Choice Prerogatives: Management may use tests “considered” accurate, but should regularly check the federal government websites for new information. New COVID Circular, section A.6. The previous guideline placed the burden on the employer to ensure tests were in fact “accurate and reliable.”
• Workplace Entry Criteria: An employer may ask all employees physically entering the workplace if they have been diagnosed with or tested for COVID-19. New COVID Circular, section A.8. The previous guideline was silent on the issue.
• Singling Out Employees for Screening: As long as based on objective evidence, managers may single out an employee to ask questions to determine if he or she has COVID-19 or to require his/her temperature taking or testing. New COVID Circular, section A.9. The prior guideline offered no view on this.
• Barring Uncooperative Employees from the Workplace: An employer may prohibit an employee from entering the workplace who refuses to have his/her temperature taken or to answer questions on COVID-19 infection, symptoms or testing. However, management should take care to first clarify and understand the worker’s grounds for refusal. It may be for example that the employee only needs reassurance on confidentiality of his/her health information or seeks some reasonable accommodation on how he/she is to be screened. New COVID Circular, section A.11. Again, previous guidelines did not address this scenario.
• Identifying COVID-Infected or -Suspected Employees: On report that a worker has COVID-19 or symptoms, managers can and should take proactive measures to prevent and limit the spread to co-workers, but only in a manner that protects the subject worker’s privacy to the extent possible.

Thus, the EEOC recognizes the necessity of interviewing the affected person for a list of people with whom he/she has had close workplace contact but advises against specifically identifying that COVID-affected person to those on the list. Instead, the employer should use a “generic descriptor,” e.g., “someone at this work location” has COVID-19. While it is inevitable that person’s identity will be known by some, the information should be on need-to-know only. New COVID Circular, section B.5. No prior EEOC guidance set forth advice on these matters.

Best practice should include close review of the New COVID Circular to determine any appropriate
expansion in turn of an employer’s internal pandemic protocols.

See also:

• Older Folks are People Too - Expanded Federal Pandemic Guidelines Allow Favorable Treatment for Aged 65-Plus Personnel (July 24, 2020)
• Thinking the Unthinkable - Expanding Federal Post-Pandemic Guidelines for Safeguarding Returning Personnel (April 23, 2020)

We continue to assist employer clients on pandemic-related policies, protocols and problem solving. For more information, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Tim Bowles
September 18, 2020

Effective September 4, 2020, Assembly Bill (AB) 2257– through Labor Code section 2776 – modifies and expands exemptions for bona fide business-to-business contracting relationships from the severe ABC independent contractor test. The more-forgiving Borello multi-factor balancing test will continue determine contractor vs. employee status for such associations.

A business entity providing services (the “service provider”) to another business entity (the “contracting business”) can fall within AB 2257’s modified business-to-business exception if each enterprise is a sole proprietorship, corporation, partnership, limited liability company or limited liability partnership.

To qualify for the exemption, AB 2257 also provides:

• Under the previous AB 5 standard, the service provider had to provide services directly to the contracting business rather than to its customers. AB 2257 now permits the service provider’s employees to deliver such contracted services directly to the contracting business’ customers so long as they do so under the service provider’s name and the service provider regularly contracts with other businesses. For example, if properly structured, a custom blinds company can now maintain its independence if hired by an interior designer to install window treatments for the designer’s clients.
• The service provider’s written contract must now specify the payment amount, rate of pay and due date.
• The service provider must still maintain its own separate business location, which may now include a personal residence.
• Prior law required a service provider company to be concurrently engaged in multiple contracts with other businesses in order to maintain the business-to-business exception to AB 5. The new law merely states the service provider must be allowed to contract with other businesses without restrictions. Thus, a service provider working exclusively on a large job for a single contracting business does not have to literally perform work for other businesses simultaneously to qualify for the exemption.
• Prior law required the service provider to provide its own tools, vehicles and equipment. The new law is not so strict, recognizing that a service provider may use some of the contracting business’s resources without losing its independence. For example, an IT service provider might well have access to and utilize the contracting company’s office equipment and proprietary software to troubleshoot and resolve a computing problem.

The service provider must also:

• be free from the contracting business’s control and direction both under the contract and in fact;
• be customarily engaged in an independently established business of the same nature as the work performed;
• advertise and hold itself out to the public as available to provide the same or similar services;
• negotiate its own rates and set its own hours and location of work;
• obtain any required business license and/or tax registration; and
• refrain from performing construction-type work that requires a license from the Contractor State Licensing Board. (Independent contractor exemption from the ABC test in the construction trades is subject to another set of rules; to be covered in a future article.)

New “On-Site” Services Exception: AB-2257 also creates a new “on-site services exception” to the ABC test when two businesses contract to provide services at “single-engagement events,” i.e., a stand-alone non-recurring event in a single location or a series of events in the same location no more than once a week. Properly structured, this would permit a caterer or stand-up entertainer to maintain independence from an event producer while serving or performing for guests. See, Labor Code section 2279.

This on-site exception applies for any type of single-engagement services except those provided in certain industries deemed “high-hazard” or at high risk of independent contractor misclassification including, for example, specific agricultural, construction, delivery, transportation/trucking and manufacturing pursuits as well as some healthcare and social assistance businesses such as in-home care and psychiatric hospitals.

To meet this on-site, single-engagement exception, the parties must be at arms-length, thus free from the other’s direction and control, able to negotiate pay rates, operating from separate business locations, providing their own tools, obtaining any required business license and/or tax registration, customarily engaging in the same or similar type of work or holding themselves out to potential customers as available to do so, and being permitted to contract with other businesses for similar services and maintaining their own clientele without restrictions.

AB 2257’s modifications, additions and clarifications should make it easier for many more businesses to legitimately contract with other businesses while avoiding the rigid ABC test. Any such arrangement should of course be carefully stated in writing as well as performed consistent with these new criteria.

See also,

• Gagging the Gigs - California Remodels Exceptions to Its Strict Independent Contractor Test (September 11, 2020)
• Back From the Brink – For Now- Uber and Lyft’s Last-Minute Reprieve From Order to Convert Drivers to Employees (August 27, 2020)
• Making Dynamex Retroactive – Federal Appeals Court Rules New Independent Contractor ABC Test Applies Before It Existed (May 31, 2019)
• Independent Contractor or Employee? – California Legislature Dealing with Competing Proposals to Kill or Expand New Dynamex Test (April 19, 2019)
• Independent Contractor Status? It Depends – Radically New Dynamex Test Only Applies to Certain Employee Classification Cases (November 9, 2018)

For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth
September 17, 2020

California’s statutory “ABC test” for classifying workers as independent contractors (I/Cs) – enacted in 2019 -- is among the most restrictive in the nation:

(A) The person is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;
(B) The person performs work that is outside the usual course of the hiring entity’s business; and
(C) The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

Point B is the kicker. No matter a worker’s lack of supervision or his/her clearly separate pursuit of a trade or business, that person is the hiring business’s employee if performing any of the central functions of that enterprise.

As this “innovation” in the law threatened to wreak havoc in numerous industries and professions classifying independents by the traditional balancing of control factors, the legislature has tempered the test with numerous exceptions, e.g., the building trades and law practice. See articles referenced below.

Any worker falling within an ABC test exception must yet satisfy the extensive, long- standing state and federal criteria to establish his or her independence, including the IRS factors and numerous rulings.

Now add to those standards the federal Department of Labor’s (DOL) Final Rule, effective March 11, 2024, for I/C classification under the Fair Labor Standards Act.

The DOL’s Fact Sheet 13 sets out the Final Rule’s six primary, equally weighted factors to determine whether a worker is economically dependent on the hiring entity (employer):

1. The worker’s opportunity to profit or lose from the relationship based on the worker’s managerial skill, including:
   • Ability to negotiate payment for work;
   • Marketing and other efforts by the worker to expand the worker’s business;
   • Worker choice on whether to accept jobs and when to do them;
   • Worker decision-making on hiring, renting space, and obtaining equipment and materials;

1. Relative investment by the hiring entity and the worker, including the latter’s purchase of tools and other investments to support the growth of his/her own business;

1. The relative permanence of the work relationship -- sporadic work, specific projects, and a worker’s non-exclusive relations with the hirer support I/C status;

1. The nature and degree of control exercised by the hiring entity over the worker -- imposing hours and supervising worker performance look like employment;

1. Whether and to what extent the worker’s duties and labor are an integral part of the hiring business. The greater centrality, the more likely it’s employment. Someone painting a paint store’s walls is less like an employee than the person hired to sell the paint; and

1. A worker’s a high level of skill and initiative to perform the work can support I/C status.

Take-Aways:

Correct classification of independent contractors is always a case-by-case inquiry through a morass of state and federal criteria, best navigated with the aid of a skilled management-side employment attorney.

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

See also:

• Employee or Independent Contractor? Employers Who Misclassify Workers Put Themselves at Risk (September 16, 2022)
• California’s Newest Independent Contractor Law Part 5 – New “Music and Entertainer” Exemption from the Strict “ABC” Test (October 29, 2020)
• California’s Newest Independent Contractor Law Part 4- Amateur Umpires and Referees Among Expanded “Specified Occupations” Exceptions to Strict Test (October 22, 2020)
• California’s Newest Independent Contractor Law Part 3 – “Fine Artists” and Other Clarified and Expanded Professional Services Exemptions (October 10, 2020)
• California’s Newest Independent Contractor Law Part 2 – Revised Referral Agency Exception (September 24, 2020)
• California’s Newest Independent Contractor Law Part I – Revamped Business-To-Business Exceptions (September 17, 2020)

Helena Kobrin
Tim Bowles

April1 5, 2024

Beginning with the California Supreme Court’s Dynamex Operations West, Inc. v. Superior Court decision (April, 2018) and continuing with the passage of AB 5, effective January 1, 2020, state policymakers have sought to limit the definition of “independent contractors” under a severe ABC test.

The trend has been aimed particularly at curtailing the independent contractor model exemplified by gig economy giants such as Uber and Lyft. See, Game Changer - Independent Contractor Status in California Now Falls Under Radically Different Rules (June 1, 2018); California’s Independent Contractors, An Endangered Species by Newly Enacted AB5 (October 4, 2019).

Widespread dissatisfaction over AB 5’s limited exemptions has led Sacramento to replace that law with AB 2257, effective September 4, 2020. The new standards – found in Labor Code sections 2775-2783 – uphold the ABC test while restating and broadening the exceptions, including:

• Wider business-to-business exceptions including one for sole proprietor services “at the location of a single-engagement event”;
• An expanded referral agency exception in all service industries except high hazard and “janitorial, delivery, courier, transportation, trucking, agricultural labor, retail, logging, in-home care, or construction services other than minor home repair”;
• Exceptions for professional services, including marketing; human resources; travel agency; graphic design; grant writing; fine artists; enrolled agents (certain tax consulting); payment processing; still photography; photojournalism, videography, photo editing, and digital content aggregators servicing such persons; licensed esthetician, cosmetologist, electrologist, barber, and manicurist services; specialized performer teaching master classes; appraiser; registered forester; real estate licensee; home inspector; and repossession agency;
• Several creative activities, including creation of sound recordings and musical compositions; film and television unit production crews; individual musicians performing original creations; and individual performance artists;
• Certain contractor – subcontractor relations in the building trades;
• Data aggregators (e.g. online customer and website use info); and
• Doctors, lawyers, dentists, psychologists, veterinarians, lawyers, architects, landscape architects, engineers, private investigators, accountants, and certain insurance industry professionals.

Such excepted businesses and individuals must still meet the multi-factor balancing test for independence specified in the California Supreme Court’s 1989 Borello Sons Inc. v. Dept. of Industrial Relations decision. See Dodging the Bullet - The Industries and Professions Not Subject to California’s New Independent Contractor Restrictions (October 2019).

We will address particular features of the new law in upcoming articles.

See also:

• Making Dynamex Retroactive - Federal Appeals Court Rules New Independent Contractor ABC Test Applies Before It Existed (May 31, 2019)
• Independent Contractor or Employee? - California Legislature Dealing with Competing Proposals to Kill or Expand New Dynamex Test (April 19, 2019)
• Independent Contractor Status? It Depends - Radically New Dynamex Test Only Applies to Certain Employee Classification Cases (November 9, 2018)

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin
September 11, 2020