In 2018 the California Supreme Court’s Dynamex decision replaced decades of fuzzy multi-factor analysis with a presumption: every worker is an employee unless the hiring entity proves otherwise. The Legislature codified it in AB 5, now Labor Code §2775, and the test it imposed — the ABC test — is deliberately hard to pass.
The hiring entity must prove all three: (A) the worker is free from its control and direction in performing the work, both under contract and in fact; (B) the work performed is outside the usual course of the hiring entity’s business; and (C) the worker is customarily engaged in an independently established trade or business of the same nature.
Prong B is the killer. A delivery company’s drivers, a salon’s stylists, a construction firm’s framers, a bakery’s cake decorators — all perform work squarely inside the usual course of business, and prong B fails no matter how the contract is worded. The classic passing example: a retail store hires an outside plumber. Plumbing is not retail; prong B is satisfied.
Yes, the statute carries occupational exemptions (§2778 and neighbors) — licensed professionals, certain B2B relationships, and app-based drivers under Proposition 22’s separate regime — and exempted categories fall back to the older Borello factors. But the default rule for the ordinary 1099 worker is the ABC test, and the burden never leaves the employer.
What reclassification recovers: overtime and minimum wage under §1194, meal/rest premiums, and — often the sleeper claim — business expense reimbursement under §2802: mileage at the IRS rate, phone, tools, supplies. A misclassified driver’s unreimbursed mileage alone frequently exceeds the wage differential. Add pay-stub and waiting-time penalties, and employer-side payroll taxes the worker wrongly absorbed.
The EDD and Labor Commissioner both enforce classification; the DIR’s independent contractor FAQ maps the analysis. The label on your tax form was their choice. Whether it was legal is the ABC test’s choice — and the presumption started on your side.
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