The California State Supreme Court, in the case of a suit against Dynamex Operations West, said simply that “when a worker has not independently decided to engage in an independently established business but instead is simply designated an independent contractor – there is a substantial risk that the hiring business is attempt to evade the demands of an applicable wage order through misclassification.” In short, to be independent they must be, you know, independent.  Businesses must show that the worker is free from the control and direction of the employer, perform work that is outside the hirer’s core business and customarily engage in an independently established trade, occupation or business

On April 30, 2018 the California Supreme Court determined that California employers must always start with the presumption that a worker is a common law employee.  They may classify them as independent ONLY IF ALL of these criteria are being met:

Worker is free from control and direction in connection with the performance of the work

The worker performs work that is outside the usual course of the hiring entity’s business

Worker customarily engaged in independently established trade, occupation or business

This gives common sense to what the Department of Labor has long used as their “twenty questions” to determine the independence of an independent contractor.  The only question remaining now is that, if the DOL finds an employer responsible for an “employee” who may have previously been misclassified, if all rights and benefits that apply will be made retroactively