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