An Administrator's Guide to California Private School Law

Chapter 6 – Wage And Hour Laws

individual or class of individuals, the school should first determine whether the individual is considered to be an “employee.” While most workers are covered employees, there are certain classes of individuals who are not considered employees such as independent contractors and volunteers. If the individual is not considered an “employee,” there is no employment relationship and the wage laws do not apply. 482 LCW Practice Advisor

Individuals not covered by wage laws should be distinguished from those who are exempt from its overtime provisions. Exempt employees are covered by wage laws to the extent that schools may have to pay certain minimum salaries, maintain payroll records and otherwise comply with the wage laws. On the other hand, schools have no wage law obligations with respect to persons who are not covered by the law.

B. I NDEPENDENT C ONTRACTORS Contractors who perform services for a private school, and who are not employees, need not be paid according to wage law requirements. However, before a school classifies any worker as an independent contractor, the school must be certain that the worker, the duties the worker performs, and the relationship between the worker and the school truly qualify that worker to be an independent contractor. If a worker does not meet the criteria for “independent contractor” status, the person must be treated as an employee for wage purposes. LCW Practice Advisor

Employers may be liable for improper payment of wages to workers provided by staffing agencies. For schools who utilize such workers, steps should be taken to have the staffing agency indemnify the school for any loss or harm arising from such claims by the agency’s workers. 483

1. B URDEN O F P ROOF There is a presumption that workers are employees under California law. 484 This presumption is rebuttable if the hiring entity can establish a specific set of factors, described as the ABC test below, to prove the worker is an independent contractor. California law places the burden on the hiring entity to establish that the worker is an independent contractor. Therefore, any schools which serve as the hiring entity of independent contractors have the burden of proving that the individuals performing services for them are correctly classified as independent contractors and are not employees 2. T HE ABC T EST In determining whether a worker is properly classified as an independent contractor, courts will apply the ABC test. 485 The California Supreme Court developed the ABC test in Dynamex Operations West, Inc. v. Superior Court . The ABC test presumes all workers are employees, and

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 147