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

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Date Published: 08/11/2018 04:00 AM
AB2496:v97#DOCUMENT

Enrolled  August 10, 2018
Passed  IN  Senate  August 09, 2018
Passed  IN  Assembly  May 21, 2018
Amended  IN  Assembly  April 25, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 2496


Introduced by Assembly Member Gonzalez Fletcher
(Principal coauthor: Senator Skinner)

February 14, 2018


An act to amend Section 2750.5 of the Labor Code, and to add Sections 621.6 and 13004.7 to the Unemployment Insurance Code, relating to employment, and making an appropriation therefor.


LEGISLATIVE COUNSEL'S DIGEST


AB 2496, Gonzalez Fletcher. Janitorial employees: employment status: burden of proof.
(1) Existing law creates a rebuttable presumption that a worker performing services for which a license is required under specified statutes, is an employee rather than an independent contractor. Existing law provides specified criteria to determine whether the worker is an employee or an independent contractor.
Existing law requires property service employers to register with the Division of Labor Standards Enforcement and to provide, among other things, recordkeeping and training for their employees, as specified.
This bill would provide that a property service employer would be subject to the rebuttable presumption provisions that its workers are employees rather than independent contractors.
(2) Existing law requires employers to withhold tax and make contribution amounts with respect to unemployment insurance, disability insurance, employee training funding, and personal income tax from the wages paid to their employees. Existing law, with specified exceptions, requires that the determination of the employer-employee relationship be made pursuant to common law principles. Existing law defines “employee” for those purposes to include, among other individuals, an individual who is the employee of a person who holds a contractor’s license or who is required to obtain a contractor’s license, as specified.
This bill would also define the term “employee” for purposes of those provisions to additionally include the employee of a person who holds a registration as a property service employer or a person who is required to hold that registration.
Because this bill would expand the categories of people who would receive benefits from, and deposit additional moneys, into the Unemployment Fund, a continuously appropriated fund, the bill would make an appropriation.
Vote: MAJORITY   Appropriation: YES   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


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:
(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.
(2) That the individual is customarily engaged in an independently established business.
(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 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 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.