SB 900

Bill Subjects

Abstract

(1) Existing law expressly authorizes the Department of Industrial Relations to assist and cooperate with the federal Wage and Hour Division and the federal Children's Bureau in enforcing of the federal Fair Labor Standards Act of 1938 within this state. This bill would recast those provisions and would delete the express authorization for the department to assist and cooperate with the bureau. (2) Existing law requires a 3-part test, commonly known as the "ABC" test, to determine if workers are employees or independent contractors for purposes of the Labor Code, the Unemployment Insurance Code, and the wage orders of the Industrial Welfare Commission. Under the ABC test, a person providing labor or services for remuneration is considered an employee rather than an independent contractor unless the hiring entity demonstrates that the person is free from the control and direction of the hiring entity in connection with the performance of the work, the person performs work that is outside the usual course of the hiring entity's business, and the person is customarily engaged in an independently established trade, occupation, or business. Existing law charges the Labor Commissioner with the enforcement of labor laws, including worker classification. Existing law exempts specified occupations and business relationships from the application of the ABC test described above. Existing law, instead, provides that these exempt relationships are governed by the multifactor test previously established in the case of S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341. Existing law exempts from the application of the ABC test certain licensed health care professionals performing professional or medical services provided to or by a prescribed health care entity. This bill would additionally exempt a licensed professional clinical counselor, licensed clinical social worker, or licensed marriage and family therapist performing professional or medical services provided to or by a prescribed health care entity. This bill would also exempt amateur athletic officials supervising an amateur sporting contest held by an amateur sports organization. This bill would also exempt a franchisee, as defined, if certain requirements are met. Existing law exempts from the application of the ABC test a contract for "professional services," as defined, if the hiring entity demonstrates that certain factors are satisfied. This bill would expand the definition of "professional services" to include prescribed security researchers, appraisers, and certified shorthand reporters. Existing law exempts from the application of the ABC test business relationships between a referral agency and a service provider, as defined, subject to certain conditions. Existing law defines a "referral agency," for purposes of this exemption, as a business that connects clients with service providers that provide various types of services, including tutoring. Existing law defines a "tutor," for this purpose, to include a person who develops and teaches their own curriculum. This bill would expand the definition of "referral agency" to include a business that connects clients with service providers that provide certified interpretation or translation services, as defined. The bill would expand the definition of "tutor" to also include a person who teaches curriculum that is proprietarily and privately developed or provides private instruction or supplemental academic enrichment services by using their own teaching methodology or techniques. Existing law exempts from the application of the ABC test a direct salesperson as described in provisions governing unemployment insurance if the conditions for exclusion from employment under that section are met. Those unemployment insurance provisions define "employment" for purposes of unemployment insurance, and exempt from that definition the services performed by specified persons, including real estate, cemetery, or direct sales salespersons, if certain conditions are met, including either specified licensure or performing demonstrations and sales presentations of consumer products in the home of the buyer, or sales to a buyer for resale by the buyer or others in the home or otherwise than from a retail or wholesale establishment, as prescribed. This bill would also exempt from the application of the ABC test a manufactured housing salesperson and correspondingly revise the unemployment insurance definition of "employment" to exclude a licensed manufactured housing salesperson. The bill would further revise the conditions for exclusion to also exempt persons performing demonstrations and sales of products in the home or business of the buyer. The bill would exclude from a retail or wholesale establishment, under these unemployment insurance provisions, a bus, van, or truck from which the individual seller sells specified products. In addition to the above changes, this bill would repeal and reenact the ABC test and the existing exemptions as a new article of the Labor Code.