Most California employers must apply the ABC test (for workers’ compensation), effective July 1, 2020. There are some conditional exemptions, however.
The following is a list of conditional exemptions for which the Borello test may still apply, even after July 1, 2020.
NOTE: An injunction is currently in place, restraining the ABC test (per AB 5) from applying to motor carrier operations within the trucking industry. At this time, all motor carrier operations are subject to the 11 factor Borello test for employment status determinations until the injunction is lifted.
Administrator of human resources
Condition of Exemption from ABC Test | Additional Conditions (if any) | Current Expiration of Exemption | Labor Code Reference* |
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Contracted work predominantly intellectual and varied. Output produced/result accomplished cannot be standardized in relation to a given period of time | None | §2778(b)(2)(B) |
App-based Drivers for Rideshare or Delivery Services
Condition of Exemption from ABC or Borello Test | Additional Conditions (if any) | Current Expiration of Exemption | Labor Code Reference* |
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These conditions are for app-based drivers for rideshare or delivery services only. Any other job classification that works for this service (e.g. clerical employees) are still subject to the ABC Test or Borello test on a case-by-case basis. |
None | Business and Professional Code, Division 3, Chapter 10.5 |
Business-to-business contracting relationship
Condition of Exemption from ABC Test | Additional Conditions (if any) | Current Expiration of Exemption | Labor Code Reference* |
Business service provider must be formed as sole proprietorship*, partnership, limited liability company, limited liability partnership, or corporation (if individual worker, exemption does not apply) |
Business provider:
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None | §2776 |
Commercial fisherman
Condition of Exemption from ABC Test | Additional Conditions (if any) | Current Expiration of Exemption | Labor Code Reference* |
Valid, unrevoked commercial fishing license issued pursuant to Division 6, Part 3, Chapter 1, Article 3 of the Fish and Game Code | Must be working on an American vessel | January 1, 2023 | §2783(g) |
Competition Judge
Condition of Exemption from ABC Test | Additional Conditions (if any) | Current Expiration of Exemption | Labor Code Reference* |
Judge has specialized skill set or expertise providing services that require the exercise of discretion and independent judgment to an organization for the purposes of determining the outcome or enforcing the rules of a competition. | This includes, but is not limited to, an amateur umpire or referee. | None | §2783(j) |
Construction subcontractors
Condition of Exemption from ABC Test | Additional Conditions (if any) | Current Expiration of Exemption | Labor Code Reference* |
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If conditions for exemption met, employment status for individual working for contractor determined by Borello and Labor Code §2750.5 | None | §2781 |
Construction trucking services
Condition of Exemption from ABC Test | Additional Conditions (if any) | Current Expiration of Exemption | Labor Code Reference* |
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If conditions for exemption met, employment status for individual working for contractor determined by Borello and Labor Code §2750.5. A CSLB license is not required if the all of the following conditions are met:
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January 1, 2022 | §2781(h) |
Content contributor, advisor, producer, narrator, or cartographer for a journal, book, periodical, evaluation, other publication or educational, academic, or instructional work in any format or media
Condition of Exemption from ABC Test | Additional Conditions (if any) | Current Expiration of Exemption | Labor Code Reference* |
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None | §2778(b)(2)(K) |
Data Aggregators-relationship between a data aggregator and a research subject
Condition of Exemption from ABC Test | Additional Conditions (if any) | Current Expiration of Exemption | Labor Code Reference* |
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None | None | §2782 |
Direct salesperson
Condition of Exemption from ABC Test | Additional Conditions (if any) | Current Expiration of Exemption | Labor Code Reference* |
If defined in Unemployment Code §650 | None | None | §2783(e) |
Digital Content Aggregator
Condition of Exemption from ABC Test | Additional Conditions (if any) | Current Expiration of Exemption | Labor Code Reference* |
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Hired or retained by a still photographer, photojournalist, videographer, or photo editor | None | §2778(b)(2)(l)(ii) |
Enrolled agent
Condition of Exemption from ABC Test | Additional Conditions (if any) | Current Expiration of Exemption | Labor Code Reference* |
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None | None | §2778(a)(2) |
Esthetician, electrologist, manicurist, barber, cosmetologist
Condition of Exemption from ABC Test | Additional Conditions (if any) | Current Expiration of Exemption | Labor Code Reference* |
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Individual service provider is licensed and:
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January 1, 2022, for manicurists only | §2778(b)(2)(L)(i)-(vi) |
Fine artist
Condition of Exemption from ABC Test | Additional Conditions (if any) | Current Expiration of Exemption | Labor Code Reference* |
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“Fine artist” means an individual who creates works of art to be appreciated primarily or solely for their imaginative, aesthetic, or intellectual content, including drawings, paintings, sculptures, mosaics, works of calligraphy, works of graphic art, crafts, or mixed media. |
None | §2778(b)(2)(F)(i)-(ii) |
Freelance writer, translator, editor, copy editor, illustrator, or newspaper cartoonist
Condition of Exemption from ABC Test | Additional Conditions (if any) | Current Expiration of Exemption | Labor Code Reference* |
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None | §2778(b)(2)(j) |
Grant writer
Condition of Exemption from ABC Test | Additional Conditions (if any) | Current Expiration of Exemption | Labor Code Reference* |
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None | None | §2778(b)(2)(E) |
Graphic design
Condition of Exemption from ABC Test Additional Conditions (if any)Current Expiration of Exemption Labor Code Reference*
Condition of Exemption from ABC Test | Additional Conditions (if any) | Current Expiration of Exemption | Labor Code Reference* |
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None | None | §2778(b)(2)(D) |
Home inspector, Manufactured Housing Salesperson
Condition of Exemption from ABC Test | Additional Conditions (if any) | Current Expiration of Exemption | Labor Code Reference* |
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None | None | §2778(b)(b)(2) |
Individual conducting an international exchange visitor program
Condition of Exemption from ABC Test | Additional Conditions (if any) | Current Expiration of Exemption | Labor Code Reference* |
Individual has obtained and maintains full official designation by the United States Department of State under Part 62 (commencing with Section 62.1) of Title 22 of the Code of Federal Regulations for the purpose of conducting, instead of participating in, international and cultural exchange visitor programs and is in full compliance with Part 62 (commencing with Section 62.1) of Title 22 of the Code of Federal Regulations. | None | None | §2783(i) |
Individual Performance Artist
Condition of Exemption from ABC Test | Additional Conditions (if any) | Current Expiration of Exemption | Labor Code Reference* |
An individual performance artist performing material that is their original work and creative in character and the result of which depends primarily on the individual’s invention, imagination or talent. |
The individual is free to accept or reject each individual performance engagement without being penalized in any form by the hiring entity. |
None | §2780(c)(1) |
Individual providing appraisal services
Condition of Exemption from ABC Test | Additional Conditions (if any) | Current Expiration of Exemption | Labor Code Reference* |
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None | None | §2778(b)(2)(N) |
Lawyer, architect, engineer, private investigator, accountant
Condition of Exemption from ABC Test | Additional Conditions (if any) | Current Expiration of Exemption | Labor Code Reference* |
Active license from State of California | None | None | §2783(c) |
Marketing
Condition of Exemption from ABC Test | Additional Conditions (if any) | Current Expiration of Exemption | Labor Code Reference* |
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Contracted work must be original/creative in character | None | §2778(b)(2)(A) |
Motor club contracted services
Condition of Exemption from ABC Test | Additional Conditions (if any) | Current Expiration of Exemption | Labor Code Reference* |
Motor club is licensed pursuant to Division 2, Part 5, Chapter 2 (commencing with §12160) of the Insurance Code | Party contracting with motor club must be a separate and independent business from the motor club | None | §2784 |
Music industry
Condition of Exemption from ABC Test | Additional Conditions (if any) | Current Expiration of Exemption | Labor Code Reference* |
The following are subject to Borello when connected with creating, marketing, promoting, or distributing sound recordings or musical compositions:
Any other individual engaged to render any creative, production, marketing, or independent music publicist services related primarily to the creation, marketing, promotion or distribution of sound recordings or musical compositions |
The ABC Test applies to the following industries/occupations as those listed are not exempt:
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None | §2780(a)(1)(A-G) |
Newspaper carrier
Condition of Exemption from ABC Test | Additional Conditions (if any) | Current Expiration of Exemption | Labor Code Reference* |
Working under contract with a newspaper publisher or newspaper distributor | None | January 1, 2025 | §2783(h) |
Newspaper distributor
Condition of Exemption from ABC Test | Additional Conditions (if any) | Current Expiration of Exemption | Labor Code Reference* |
Working under contract with a newspaper publisher | None | January 1, 2021 | §2783(h) |
Payment processing agent
Condition of Exemption from ABC Test | Additional Conditions (if any) | Current Expiration of Exemption | Labor Code Reference* |
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Service provided through an independent sales organization | None | §2778(b)(2)(H) |
Physician & surgeon, dentist, podiatrist, psychologist, veterinarian
Condition of Exemption from ABC Test | Additional Conditions (if any) | Current Expiration of Exemption | Labor Code Reference* |
Licensed by State of California pursuant to Division 2 of the Business & Professions Code | None | None | §2783(b) |
Real estate licensee
Condition of Exemption from ABC Test | Additional Conditions (if any) | Current Expiration of Exemption | Labor Code Reference* |
Licensed pursuant to Division 4 of the CA Business & Professions Code. Determination as to employment status is governed by Business & Professions Code §10032(b) | If Business & Professions Code §10032(b) is not applicable, determination is made under Labor Code §3200 et seq. | None | §2778(b)(b)(1) |
Referral Agency
Condition of Exemption from ABC Test | Additional Conditions (if any) | Current Expiration of Exemption | Labor Code Reference* |
Service provider who contracts with referral agency must be business entity, i.e. sole proprietor, partnership, limited liability company, limited liability partnership, or corporation |
Referral agency must satisfy all of the following:
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None | §2777(a)(1)-(11 |
Registered Professional Foresters
Condition of Exemption from ABC Test | Additional Conditions (if any) | Current Expiration of Exemption | Labor Code Reference* |
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None | None | §2778(b)(2)(O) |
Repossession Agency
Condition of Exemption from ABC Test | Additional Conditions (if any) | Current Expiration of Exemption | Labor Code Reference* |
Licensed pursuant to Business & Professions Code §7500.2 | Agency must be free from control/direction of hiring person or entity in connection with performance of the work, both under contract and in fact | None | §2778(b)(b)(3) |
Securities broker-dealer or investment adviser or their agents and representatives
Condition of Exemption from ABC Test | Additional Conditions (if any) | Current Expiration of Exemption | Labor Code Reference* |
Registered with the Securities and Exchange Commission or the Financial Industry Regulatory Authority or licensed by State of California Title 4, Division 1, Part 3, Chapter 2 or 3 of the Corporations Code | None | None | §2783(d) |
Still Photographer or Photojournalist
Condition of Exemption from ABC Test | Additional Conditions (if any) | Current Expiration of Exemption | Labor Code Reference* |
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None | §2778(b)(2)(I)(i) |
Specialized performer hired by a performing arts company or organization to teach a master class
Condition of Exemption from ABC Test | Additional Conditions (if any) | Current Expiration of Exemption | Labor Code Reference* |
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None | §2778(b)(2)(M) |
Travel Agent Services
Condition of Exemption from ABC Test | Additional Conditions (if any) | Current Expiration of Exemption | Labor Code Reference* |
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Services must be provided by either:
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None | §2778(b)(2)(C)) |
Two Contracting Businesses (Single Engagement Event)
Condition of Exemption from ABC Test | Additional Conditions (if any) | Current Expiration of Exemption | Labor Code Reference* |
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“Single-engagement event” means a stand-alone non-recurring event in a single location, or a series of events in the same location no more than once a week. “Services” do not include services provided in an industry designated by the Division of Occupational Safety and Health or the Department of Industrial Relations as a high hazard industry pursuant to subparagraph (A) of paragraph (3) of subdivision (e) of Section 6401.7 or janitorial, delivery, courier, transportation, trucking, agricultural labor, retail, logging, in-home care, or construction services other than minor home repair. |
None | §2779(a) |
Underwriting inspections, premium audits, risk management, or loss control work for Insurance and Financial Services Industries, claims adjusting or third party administration
Condition of Exemption from ABC Test | Additional Conditions (if any) | Current Expiration of Exemption | Labor Code Reference* |
Licensed by Department of Insurance pursuant to Division 1, Part 2, Chapter 5, 6, or 8 of the Insurance Code |
None |
None | §2783(a) |
Videographer, Photo Editor
Condition of Exemption from ABC Test | Additional Conditions (if any) | Current Expiration of Exemption | Labor Code Reference* |
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None | §2778(b)(2)(I)(i) |
Please note: This document and the self-assessment questions regarding your business operations are intended for informational purposes to enable State Fund to provide a quote for workers’ compensation insurance coverage. Any person’s answers to the self-assessment questions are not binding on State Fund for any purpose. State Fund has the right to ask you and/or your broker or workers additional questions to determine the employment status of your workers. We will conduct a premium audit of your policy after policy expiration to determine your actual operations and final premium in accordance with the terms of your policy and applicable laws.