When is an independent contractor really my employee for California employment purposes?

Get Legal Help Today

 Secured with SHA-256 Encryption

Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

Full Bio →

Written by

UPDATED: Jan 28, 2009

Advertiser Disclosure

It’s all about you. We want to help you make the right legal decisions.

We strive to help you make confident insurance and legal decisions. Finding trusted and reliable insurance quotes and legal advice should be easy. This doesn’t influence our content. Our opinions are our own.

Editorial Guidelines: We are a free online resource for anyone interested in learning more about legal topics and insurance. Our goal is to be an objective, third-party resource for everything legal and insurance related. We update our site regularly, and all content is reviewed by experts.

Factors to consider when an employee is an independent contractor under California law were established in a 1989 California Supreme Court decision (S. G. Borello & Sons, Inc.). The primary test is “whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired.” If the answer is yes, the person is your employee under California law.

Other factors: The court also identified other “secondary factors.” These include:

  • whether the one performing services is engaged in a distinct occupation or business;
  • the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision;
  • the skill required in the particular occupation;
  • whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work;
  • the length of time for which the services are to be performed;
  • the method of payment, whether by the time or by the job;
  • whether or not the work is a part of the regular business of the principal; and
  • whether or not the parties believe they are creating the relationship of employer-employee.

The totality of circumstances is considered. This leaves California employers guessing as to whether a party is an independent contractor or employee. To be on the safe side, chose “employee” status in the absence of advice from a California lawyer.

 

 

(Reviewed 9-08)

 

Get Legal Help Today

Find the right lawyer for your legal issue.

 Secured with SHA-256 Encryption