California’s Dynamex Rolls Out The ABC Test And The Presumption Of Employment -

? The burden is placed on the employer to prove IC status

? Individual is deemed an employee unless employer demonstrates prongs A, B, and C of the test:

– (a) that the worker is free from the control and direction of the hirer in connection with the performance of the work;

– (b) that the worker performs work that is outside the usual course of the hiring entity’s business;

– (c) that the worker is customarily engaged in an independently established trade, occupation, or business.

“C” Stands For “California Won’t Follow Massachusetts” (According To CA’S Fourth District Court Of Appeal) –

? Part C in Massachusetts requires a worker need only be “capable” of independent business operation “even if the putative employee does not actually do so”

? Part C in California will require actual independent business operation

? In Garcia v. Border Transport court decided on October 26, 2018 to split with MA:

– a taxi driver alleged he was misclassified as an IC, Dynamex was applied by the Court of Appeals in driver’s favor

– Defendants failed the ABC test in part by providing no evidence of plaintiff’s independent trade/occupation/business (to the contrary, taxi’s permit was limited to use while working for defendant, suggesting his “business” was limited to defendant’s)