Today's Law As Amended

PDF |Add To My Favorites | print page

AB-2496 Janitorial employees: employment status: burden of proof.(2017-2018)



SECTION 1.

 Section 2750.5 of the Labor Code is amended to read:

2750.5.
 (a)  There is a rebuttable presumption affecting the burden of proof that a worker performing services for which a license is required pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code, or for which a registration is required pursuant to Part 4.2 (commencing with Section 1420) of Division 2 of this code, or  who is performing such services for a person who is required to obtain such a license or registration,  is an employee rather than an independent contractor. Proof of independent contractor status includes satisfactory proof of these factors:
(a) (1)  That the individual has the right to control and discretion as to the manner of performance of the contract for services in that the result of the work and not the means by which it is accomplished is the primary factor bargained for.
(b) (2)  That the individual is customarily engaged in an independently established business.
(c) (3)  That the individual’s independent contractor status is bona fide and not a subterfuge to avoid employee status. A bona fide independent contractor status is further evidenced by the presence of cumulative factors such as substantial investment other than personal services in the business, holding out to be in business for oneself, bargaining for a contract to complete a specific project for compensation by project rather than by time, control over the time and place the work is performed, supplying the tools or instrumentalities used in the work other than tools and instrumentalities normally and customarily provided by employees, hiring employees, performing work that is not ordinarily in the course of the principal’s work, performing work that requires a particular skill, holding a license pursuant to the Business and Professions Code,  Code or a registration pursuant to Part 4.2 (commencing with Section 1420) of Division 2 of this code,  the intent by the parties that the work relationship is of an independent contractor status, or that the relationship is not severable or terminable at will by the principal but gives rise to an action for breach of contract.
(b)  (1)  In addition to the factors contained in subdivisions (a), (b), and (c),  paragraphs (1), (2), and (3) of subdivision (a),  any person performing any function or activity for which a license is required pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code shall hold a valid contractors’ license as a condition of having independent contractor status.
(2) In addition to the factors contained in paragraphs (1), (2), and (3) of subdivision (a), any person performing any function or activity for which registration is required pursuant to Part 4.2 (commencing with Section 1420) of Division 2 of this code shall hold a valid registration as a condition of having independent contractor status.
(c)  For purposes of workers’ compensation law, this presumption is a supplement to the existing statutory definitions of employee and independent contractor, and is not intended to lessen the coverage of employees under Division 4 and Division 5.

SEC. 2.

 Section 621.6 is added to the Unemployment Insurance Code, to read:

621.6.
 (a) “Employee” also means any individual who is an employee, pursuant to Section 2750.5 of the Labor Code, of a person who holds a valid registration pursuant to Part 4.2 (commencing with Section 1420) of Division 2 of the Labor Code.
(b) When subdivision (a) does not apply, “employee” shall also mean any individual who is an employee, pursuant to Section 2750.5 of the Labor Code, of a person for whom registration is required pursuant to Part 4.2 (commencing with Section 1420) of Division 2 of the Labor Code.

SEC. 3.

 Section 13004.7 is added to the Unemployment Insurance Code, to read:

13004.7.
 (a) “Employee” also means any individual who is an employee, pursuant to Section 2750.5 of the Labor Code, of a person who holds a valid registration pursuant to Part 4.2 (commencing with Section 1420) of Division 2 of the Labor Code.
(b) When subdivision (a) does not apply, “employee” shall also mean any individual who is an employee, pursuant to Section 2750.5 of the Labor Code, of a person for whom registration is required pursuant to Part 4.2 (commencing with Section 1420) of Division 2 of the Labor Code.