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.

Condition of Exemption from ABC Test Additional Conditions (if any) Current Expiration of Exemption Labor Code Reference*
  1. Business location separate from hiring entity (but services may be performed at location of hiring entity).
  2. If work is performed more than six months after the effective date of this section and the work is performed in a jurisdiction that requires the individual to have a business license or business tax registration, the individual has the required business license or business tax registration in order to provide the services under the contract, in addition to any required professional licenses.
  3. Individual can set/negotiate own rates.
  4. Apart from project completion, individual can set own hours.
  5. Individual customarily engaged in same type of work with other hiring entity or advertises availability to others to perform same type of work.
  6. Individual customarily exercises discretion /independent judgment in performance of services.
 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)
Condition of Exemption from ABC or Borello Test Additional Conditions (if any) Current Expiration of Exemption Labor Code Reference*
  1. The network company does not unilaterally prescribe specific dates, time of day, or a minimum number of hours during which the app-based driver must be logged into the network company’s online-enabled application or platform.
  2. The network company does not require the app-based driver to accept any specific rideshare service or delivery service request as a condition of maintaining access to the network company’s online-enabled application or platform.
  3. The network company does not restrict the app-based driver from performing rideshare services or delivery services through other network companies except during engaged time.
  4. The network company does not restrict the app-based driver from working in any lawful occupation or business.
  1. The company meets the definition of either a Delivery Network Company or a Transportation Network Company
  2. The driver meets the definition of either “Delivery Network Company Courier” or “Transportation Network Company Driver”
  3. Network Company maintains required insurance coverages
    1. Occupational Accident Insurance with the minimum coverages: Medical expenses: ($1,000,000) & Disability payments equal to 66% of drivers' average weekly earnings from all network companies. 
    2. Accidental Death Insurance 
    3. Healthcare Subsidy  

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
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:

  1. Is free from control/direction of contracting business
  2. is providing services directly to contracting business, not customers of contracting business
    1. This does not apply if business service provider’s employees are solely performing the services under the contract under the name of the business service provider and business service provider regularly contracts with other businesses
  3. has entered into written contract with contracting business that specifies the due date and payment amount, including applicable rate of pay, for services to be performed
  4. has business license/tax registration if required in jurisdiction where work is performed
  5. maintains business location separate from business or work location of the contracting business (locations may include the business service provider’s residence)
  6. the service provider is customarily engaged in an independently established business of the same nature as that involved in the work performed
  7. the business service provider can contract with other businesses to provide same/similar services. Maintains clientele without restrictions from hiring entity
  8. advertises and holds itself out to the public as available to provide the same or similar services
  9. provides its own tools, vehicles, and equipment consistent with the nature of the work. This does not include proprietary materials necessary to perform services under contract.
  10. can negotiate its own rates
  11. can set its own hours and location of work if consistent with the nature of the work
  12. is not performing work for which a CSLB license is required

 

 

 None §2776
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)
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)
Condition of Exemption from ABC Test Additional Conditions (if any) Current Expiration of Exemption Labor Code Reference*
  1. The subcontract is in writing
  2. Subcontractor is licensed by the CSLB
  3. Subcontractor has business license/tax registration if required by subcontractor’s domicile
  4. Subcontractor’s business location separate from contractor’s business location
  5. Subcontractor authorized to hire/fire others
  6. Subcontractor must prove assumption of financial responsibility for errors or omissions in labor or services
  7. Subcontractor customarily engaged in independently established business of same nature as work performed
 If conditions for exemption met, employment status for individual working for contractor determined by Borello and Labor Code §2750.5 None §2781
Condition of Exemption from ABC Test Additional Conditions (if any) Current Expiration of Exemption Labor Code Reference*
  1. The subcontract is in writing
  2. Subcontractor is licensed by the CSLB
  3. Subcontractor has business license/tax registration if required by subcontractor’s domicile
  4. Subcontractor’s business location separate from contractor’s business location
  5. Subcontractor authorized to hire/fire others
  6. Subcontractor must prove assumption of financial responsibility for errors or omissions in labor or services
  7. Subcontractor customarily engaged in independently established business of same nature as work performed

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:

  1. Subcontractor is a business entity
  2. Subcontractor registered with the DIR as a public works contractor per Labor Code §1725.5
  3. Subcontractor utilizes own employees unless subcontractor is sole proprietor with own truck and valid Motor Carrier Permit
  4. Subcontractor negotiates, contracts with, and is paid directly by licensed contractor
 January 1, 2022 §2781(h)
Condition of Exemption from ABC Test Additional Conditions (if any) Current Expiration of Exemption Labor Code Reference*
  1. Business location separate from hiring entity (but services may be performed at location of hiring entity)
  2. If work is performed more than six months after the effective date of this section and the work is performed in a jurisdiction that requires the individual to have a business license or business tax registration, the individual has the required business license or business tax registration in order to provide the services under the contract, in addition to any required professional licenses
  3. Individual can set/negotiate own rates
  4. Apart from project completion, individual can set own hours
  5. Individual customarily engaged in same type of work with other hiring entity or advertises availability to others to perform same type of work
  6. Individual customarily exercises discretion /independent judgment in performance of services
  1. The individual works under a written contract that specifies the rate of pay and obligation to pay by a defined time
  2. The individual providing the services is not directly replacing an employee who performed the same work at the same volume for the hiring entity;
  3. The individual does not primarily perform the work at the hiring entity’s business location
  4. The individual is not restricted from working for more than one

    hiring entity.

 None §2778(b)(2)(K)
Condition of Exemption from ABC Test Additional Conditions (if any) Current Expiration of Exemption Labor Code Reference*
  1. The individual providing feedback is free from control and direction from the data aggregator
  2. Any consideration paid for the feedback provided, if prorated to an hourly basis, is an amount equivalent to or greater than the minimum wage 
  3. The nature of the feedback requested requires that the individual to data aggregator to exercise independent judgment and discretion.
The individual has the ability to reject feedback requests without being panelized in any form		 None None §2782
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)
Condition of Exemption from ABC Test Additional Conditions (if any) Current Expiration of Exemption Labor Code Reference*
  1. Business location separate from hiring entity (but services may be performed at location of hiring entity)
  2. If work is performed more than six months after the effective date of this section and the work is performed in a jurisdiction that requires the individual to have a business license or business tax registration, the individual has the required business license or business tax registration in order to provide the services under the contract, in addition to any required professional licenses
  3. Individual can set/negotiate own rates
  4. Apart from project completion, individual can set own hours
  5. Individual customarily engaged in same type of work with other hiring entity or advertises availability to others to perform same type of work
  6. Individual customarily exercises discretion /independent judgment in performance of services
 Hired or retained by a still photographer, photojournalist, videographer, or photo editor None §2778(b)(2)(l)(ii)
Condition of Exemption from ABC Test Additional Conditions (if any) Current Expiration of Exemption Labor Code Reference*
  1. Business location separate from hiring entity (but services may be performed at location of hiring entity)
  2. If work is performed more than six months after the effective date of this section and the work is performed in a jurisdiction that requires the individual to have a business license or business tax registration, the individual has the required business license or business tax registration in order to provide the services under the contract, in addition to any required professional licenses
  3. Individual can set/negotiate own rates
  4. Apart from project completion, individual can set own hours
  5. Individual customarily engaged in same type of work with other hiring entity or advertises availability to others to perform same type of work
  6. Individual customarily exercises discretion /independent judgment in performance of services
 None None §2778(a)(2)
Condition of Exemption from ABC Test Additional Conditions (if any) Current Expiration of Exemption Labor Code Reference*
  1. Business location separate from hiring entity (but services may be performed at location of hiring entity)
  2. If work is performed more than six months after the effective date of this section and the work is performed in a jurisdiction that requires the individual to have a business license or business tax registration, the individual has the required business license or business tax registration in order to provide the services under the contract, in addition to any required professional licenses
  3. Individual can set/negotiate own rates
  4. Apart from project completion, individual can set own hours
  5. Individual customarily engaged in same type of work with other hiring entity or advertises availability to others to perform same type of work
  6. Individual customarily exercises discretion /independent judgment in performance of services
 Individual service provider is licensed and:
  1. Sets own rates, processes own payments, and is paid directly by clients
  2. Sets own hours of work and has sole discretion on number of clients and for which clients will provide services
  3. Has own book of business and schedules own appointments
  4. Maintains own business license for services offered to clients
  5. Issues IRS Form 1099 to salon/business owner from which business space is rented (if services are performed at location of the hiring entity)
 January 1, 2022, for manicurists only §2778(b)(2)(L)(i)-(vi)
Condition of Exemption from ABC Test Additional Conditions (if any) Current Expiration of Exemption Labor Code Reference*
  1. Business location separate from hiring entity (but services may be performed at location of hiring entity)
  2. If work is performed more than six months after the effective date of this section and the work is performed in a jurisdiction that requires the individual to have a business license or business tax registration, the individual has the required business license or business tax registration in order to provide the services under the contract, in addition to any required professional licenses
  3. Individual can set/negotiate own rates
  4. Apart from project completion, individual can set own hours
  5. Individual customarily engaged in same type of work with other hiring entity or advertises availability to others to perform same type of work
  6. Individual customarily exercises discretion /independent judgment in performance of services

“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)
Condition of Exemption from ABC Test Additional Conditions (if any) Current Expiration of Exemption Labor Code Reference*
  1. Business location separate from hiring entity (but services may be performed at location of hiring entity)
  2. If work is performed more than six months after the effective date of this section and the work is performed in a jurisdiction that requires the individual to have a business license or business tax registration, the individual has the required business license or business tax registration in order to provide the services under the contract, in addition to any required professional licenses
  3. Individual can set/negotiate own rates
  4. Apart from project completion, individual can set own hours
  5. Individual customarily engaged in same type of work with other hiring entity or advertises availability to others to perform same type of work
  6. Individual customarily exercises discretion /independent judgment in performance of services
  1. The individual works under a written contract that specifies the rate of pay and obligation to pay by a defined time
  2. The individual providing the services is not directly replacing an employee who performed the same work at the same volume for the hiring entity;
  3. The individual does not primarily perform the work at the hiring entity’s business location
  4. The individual is not restricted from working for more than one hiring entity.  
 None §2778(b)(2)(j)
Condition of Exemption from ABC Test Additional Conditions (if any) Current Expiration of Exemption Labor Code Reference*
  1. Business location separate from hiring entity (but services may be performed at location of hiring entity)
  2. If work is performed more than six months after the effective date of this section and the work is performed in a jurisdiction that requires the individual to have a business license or business tax registration, the individual has the required business license or business tax registration in order to provide the services under the contract, in addition to any required professional licenses
  3. Individual can set/negotiate own rates
  4. Apart from project completion, individual can set own hours
  5. Individual customarily engaged in same type of work with other hiring entity or advertises availability to others to perform same type of work
  6. Individual customarily exercises discretion /independent judgment in performance of services
 None None §2778(b)(2)(E)

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*
  1. Business location separate from hiring entity (but services may be performed at location of hiring entity)
  2. Individual has business and any required professional license
  3. Individual can set/negotiate own rates
  4. Apart from project completion, individual can set own hours
  5. Individual customarily engaged in same type of work with other hiring entity or advertises availability to others to perform same type of work
  6. Individual customarily exercises discretion /independent judgment in performance of services
 None None §2778(b)(2)(D)
Condition of Exemption from ABC Test Additional Conditions (if any) Current Expiration of Exemption Labor Code Reference*
  1. Business location separate from hiring entity (but services may be performed at location of hiring entity)
  2. If work is performed more than six months after the effective date of this section and the work is performed in a jurisdiction that requires the individual to have a business license or business tax registration, the individual has the required business license or business tax registration in order to provide the services under the contract, in addition to any required professional licenses
  3. Individual can set/negotiate own rates
  4. Apart from project completion, individual can set own hours
  5. Individual customarily engaged in same type of work with other hiring entity or advertises availability to others to perform same type of work
  6. Individual customarily exercises discretion /independent judgment in performance of services

 

 None None §2778(b)(b)(2)
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)
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.
  1. The individual is free from the control and direction of the hiring entity in connection with the performance of the work (both as a matter of contract and in fact). This includes, but is not limited to, the right for the performer to exercise artistic control over all elements of the performance.
  2. The individual retains the right to their intellectual property that was created in connection with the performance
  3. Consistent with the nature of the work, the individuals set their terms of work and has the ability to set or negotiate their rates

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)
Condition of Exemption from ABC Test Additional Conditions (if any) Current Expiration of Exemption Labor Code Reference*
  1. Business location separate from hiring entity (but services may be performed at location of hiring entity)
  2. If work is performed more than six months after the effective date of this section and the work is performed in a jurisdiction that requires the individual to have a business license or business tax registration, the individual has the required business license or business tax registration in order to provide the services under the contract, in addition to any required professional licenses
  3. Individual can set/negotiate own rates
  4. Apart from project completion, individual can set own hours
  5. Individual customarily engaged in same type of work with other hiring entity or advertises availability to others to perform same type of work
  6. Individual customarily exercises discretion /independent judgment in performance of services
 None None §2778(b)(2)(N)
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)
Condition of Exemption from ABC Test Additional Conditions (if any) Current Expiration of Exemption Labor Code Reference*
  1. Business location separate from hiring entity (but services may be performed at location of hiring entity)
  2. Individual has business and any required professional license
  3. Individual can set/negotiate own rates
  4. Apart from project completion, individual can set own hours
  5. Individual customarily engaged in same type of work with other hiring entity or advertises availability to others to perform same type of work
  6. Individual customarily exercises discretion/independent judgment in performance of services
 Contracted work must be original/creative in character None §2778(b)(2)(A)
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
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:

  1. Recording artists
  2. Songwriters, lyricists, composers, and proofers
  3. Managers of recording artists
  4. Record producers and directors
  5. in the creation of sound recordings.
  6. Musicians engaged in the creation of sound recordings
  7. Vocalists
  8. Photographers working on recording photo shoots, album covers, and other press and publicity purposes
  9. Independent radio promoters

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:

  1. Film and television unit production crews, as such term is commonly used in the fil and television industries, working on live or recorded performances for audiovisual works
  2. Publicists who are not independent music publicists
  3. A musical group performing as a symphony orchestra, performing at a theme park or amusement park, or performing in a musical theater production.
  4. The musical group is an event headliner for a performance taking place in a venue location with more than 1,500 attendees.
  5. The musical group is performing at a festival that sells more than 18,000 tickets per day.
 None §2780(a)(1)(A-G)
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)
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)
Condition of Exemption from ABC Test Additional Conditions (if any) Current Expiration of Exemption Labor Code Reference*
  1. Business location separate from hiring entity (but services may be performed at location of hiring entity)
  2. Individual has business and any required professional license
  3. Individual can set/negotiate own rates
  4. Apart from project completion, individual can set own hours
  5. Individual customarily engaged in same type of work with other hiring entity or advertises availability to others to perform same type of work
  6. Individual customarily exercises discretion /independent judgment in performance of services
 Service provided through an independent sales organization None §2778(b)(2)(H)
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)
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)
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:

  1. Service provider is free from control/direction of referral agency when providing services to client
  2. Service provider must have business license/tax registration if required in jurisdiction where work is performed. The service provider shall certify to the referral agency that they have the required business license and/or business tax registration
  3. If CSLB license required, service provider must hold such license
  4. For applicable professional licensures, permits, certifications, or registrations administered or recognized for the work being performed (e.g. asbestos abatement),the service provider shall provide valid/active certification to the referral agency
  5. Services to client delivered under service provider’s name
  6. Service provider provides its own tools and supplies
  7. Service provider has own independently established business of (or previously engaged in) the same nature as work performed for client
  8. The referral agency does not restrict the service provider from maintaining a clientele, and the service provider is free to seek work elsewhere, including through competing referral agencies
  9. Service provider sets own hours and terms of work OR negotiates their hours and terms of work directly with the client
  10. Without deduction by the referral agency, the service provider sets own rates, negotiates rates with client through the referral agency, negotiates rates directly with the client, or is free to accept or reject rates set by the client
  11. The service provider is free to accept or reject clients and contracts without being penalized by the referral agency, except if the service provider fails to fulfill any of its contractual obligations
 None §2777(a)(1)-(11
Condition of Exemption from ABC Test Additional Conditions (if any) Current Expiration of Exemption Labor Code Reference*
  1. Business location separate from hiring entity (but services may be performed at location of hiring entity)
  2. If work is performed more than six months after the effective date of this section and the work is performed in a jurisdiction that requires the individual to have a business license or business tax registration, the individual has the required business license or business tax registration in order to provide the services under the contract, in addition to any required professional licenses
  3. Individual can set/negotiate own rates
  4. Apart from project completion, individual can set own hours
  5. Individual customarily engaged in same type of work with other hiring entity or advertises availability to others to perform same type of work
  6. Individual customarily exercises discretion /independent judgment in performance of services
 None None §2778(b)(2)(O)
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)
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)
Condition of Exemption from ABC Test Additional Conditions (if any) Current Expiration of Exemption Labor Code Reference*
  1. Business location separate from hiring entity (but services may be performed at location of hiring entity)
  2. If work is performed more than six months after the effective date of this section and the work is performed in a jurisdiction that requires the individual to have a business license or business tax registration, the individual has the required business license or business tax registration in order to provide the services under the contract, in addition to any required professional licenses
  3. Individual can set/negotiate own rates
  4. Apart from project completion, individual can set own hours
  5. Individual customarily engaged in same type of work with other hiring entity or advertises availability to others to perform same type of work
  6. Individual customarily exercises discretion /independent judgment in performance of services
  1. The individual works under a written contract that specifies the rate of pay and obligation to pay by a defined time
  2. The individual providing the services is not directly replacing an employee who performed the same work at the same volume for the hiring entity;
  3. The individual does not primarily perform the work at the hiring entity’s business location
  4. The individual is not restricted from working for more than one hiring entity.
 None §2778(b)(2)(I)(i)
Condition of Exemption from ABC Test Additional Conditions (if any) Current Expiration of Exemption Labor Code Reference*
  1. Business location separate from hiring entity (but services may be performed at location of hiring entity)
  2. If work is performed more than six months after the effective date of this section and the work is performed in a jurisdiction that requires the individual to have a business license or business tax registration, the individual has the required business license or business tax registration in order to provide the services under the contract, in addition to any required professional licenses
  3. Individual can set/negotiate own rates
  4. Apart from project completion, individual can set own hours
  5. Individual customarily engaged in same type of work with other hiring entity or advertises availability to others to perform same type of work
  6. Individual customarily exercises discretion /independent judgment in performance of services
  • Duration is no more than one week
  • Hired teacher does not work for the hiring entity on a regular basis.
 None §2778(b)(2)(M)
Condition of Exemption from ABC Test Additional Conditions (if any) Current Expiration of Exemption Labor Code Reference*
  1. Business location separate from hiring entity (but services may be performed at location of hiring entity)
  2. Individual has business and any required professional license
  3. Individual can set/negotiate own rates
  4. Apart from project completion, individual can set own hours
  5. Individual customarily engaged in same type of work with other hiring entity or advertises availability to others to perform same type of work
  6. Individual customarily exercises discretion /independent judgment in performance of services

Services must be provided by either:

  1. A person regulated under Division 3, Part 3, Chapter 1, Article 2.6 of the Business & Professions Code, or
  2. An individual who is a seller of travel pursuant to §17550.1(a) of the Business & Professions Code and is exempt from registration under §17550.20(g) of the Business & Professions Code
 None §2778(b)(2)(C))
Condition of Exemption from ABC Test Additional Conditions (if any) Current Expiration of Exemption Labor Code Reference*
  1. Neither individual is subject to control and direction by the other, in connection with the performance of the work, both under the contract for the performance of the work and in fact.
  2. Each individual has the ability to negotiate their rate of pay with the other individual.
  3. The written contract between both individuals specifies the total payment for services provided by both individuals at the single-engagement event, and the specific rate paid to each individual.
  4. Each individual maintains their own business location, which may include the individual’s personal residence.
  5. Each individual provides their own tools, vehicles, and equipment to perform the services under the contract.
  6. If the work is performed in a jurisdiction that requires an individual to have a business license or business tax registration, then each individual has the required business license or business tax registration.
  7. Each individual is customarily engaged in the same or similar type of work performed under the contract or each individual separately holds themselves out to other potential customers as available to perform the same type of work.
  8. Each individual can contract with other businesses to provide the same or similar services and maintain their own clientele without restrictions.

“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)
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)
Condition of Exemption from ABC Test Additional Conditions (if any) Current Expiration of Exemption Labor Code Reference*
  1. Business location separate from hiring entity (but services may be performed at location of hiring entity)
  2. If work is performed more than six months after the effective date of this section and the work is performed in a jurisdiction that requires the individual to have a business license or business tax registration, the individual has the required business license or business tax registration in order to provide the services under the contract, in addition to any required professional licenses
  3. Individual can set/negotiate own rates
  4. Apart from project completion, individual can set own hours
  5. Individual customarily engaged in same type of work with other hiring entity or advertises availability to others to perform same type of work
  6. Individual customarily exercises discretion /independent judgment in performance of services
  1. The individual works under a written contract that specifies the rate of pay and obligation to pay by a defined time
  2. The individual providing the services is not directly replacing an employee who performed the same work at the same volume for the hiring entity;
  3. The individual does not primarily perform the work at the hiring entity’s business location
  4. The individual is not restricted from working for more than one hiring entity.
 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.