Workers: Independent Contractors or Employees?


The California Supreme Court held a difficult standard for employers to claim that workers are independent contractors, as opposed to employees.
Unless the hiring entity establishes (A) that the worker 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) that the worker performs work that is outside the usual course of the hiring entity’s business, and (C) that the worker is customarily engaged in an independently established trade, occupation, or business, the worker should be considered an employee and the hiring business an employer under the suffer or permit to work standard in wage orders. The hiring entity’s failure to prove any one of these three prerequisites will be sufficient in itself to establish that the worker is an included employee, rather than an excluded independent contractor, for purposes of the wage order.
The term “suffer or permit to work” generally means that if an employer requires or allows employees to work, they are employed and the time spent probably constitutes hours worked.