An Administrator's Guide to California Private School Law

Chapter 6 – Wage And Hour Laws

permits workers to be classified as independent contractors only if they satisfy three criteria. Under the ABC test, a worker is properly considered an independent contractor if the hiring entity establishes each and all of the following criteria: (A) That the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact; and (B) That the worker performs the 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 of the same nature as the work performed for the hiring entity. Part A of the ABC test requires that the worker be free from the control and direction of the school. To help analyze Part A, schools should ask the following questions: A worker who is subject to the type and degree of control that a school typically exercises over an employee, either by contract or in actual practice, needs to be classified as an employee and not an independent contractor. In order to satisfy Part A, a school needs to prove that the worker is free of such control. 486 Part B requires the worker to perform work that is outside the usual course of the school’s business. This criteria explores whether the worker provides services to the school in a role comparable to that of an employee. For example, if a school hires an electrician to fix lighting in the building, the electrician would meet the requirements of Part B because his/her work is outside the usual course of the school’s business. However, if a school hires a music teacher, the school is unlikely to prove the music teacher is an independent contractor because the music teacher performs work aimed at educating students, which is in the usual cause of the school’s business. The purpose of Part B is to prevent independent contractors from displacing employees, particularly if the independent contractors and employees provide the same services to an employer. Part B is also aimed at preventing employers from using superior bargaining power to coerce workers into waiving their protections under wage laws to be independent contractors. 487 Part C requires the worker to be customarily engaged in an independently established trade, occupation, or business of the same nature as the work the worker performs for the school. This criteria examines whether the worker has independently made the decision to go into business for himself or herself. The term “independent contractor” is used to reference an individual who independently went into business for himself or herself. When a worker has not decided to go into business for him or herself but is simply designated as an independent contractor by a hiring entity’s unilateral action, the California Supreme Court has found that there is a substantial risk  Is the worker free from the school’s control both contractually and actually?  Does the school exercise the same type and degree of control over the worker as it exercises over its employees?

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 148