Employment Law

Am I an employee or an independent contractor in California?

California starts from the assumption that you are an employee. Under the ABC test in Labor Code section 2775, the business that hired you must prove all three of the following: you are free from its control in doing the work, the work is outside the usual course of its business, and you are customarily engaged in your own independently established business of that kind. If it cannot prove all three, you are an employee.

Last updated October 4, 2026.

A 1099 form, a signed "independent contractor agreement" or the lack of payroll deductions does not settle the question. The Labor Commissioner says plainly that an employer cannot change a person's status by requiring a written agreement or by issuing a 1099 instead of a W-2. What counts is how the work is actually done. For the wider wage and hour picture, see our employment law page.

How is employee status decided, step by step?

  1. Start from the presumption. The Labor Commissioner explains that both of California's tests assume the worker is an employee, and the hiring business must prove otherwise.
  2. Check for an exception. Some occupations and contracting arrangements use the older Borello test or a special rule instead of the ABC test, as listed below.
  3. Apply part A, control. The business must show you are free from its control and direction in doing the work, under the contract and in fact.
  4. Apply part B, the usual course of business. The business must show the work is outside the usual course of its business.
  5. Apply part C, an independent business. The business must show you are customarily engaged in an independently established trade or business of the same kind.
  6. If any part fails, you are an employee. Labor Code section 2775(b)(1) applies the result to the Labor Code, the Unemployment Insurance Code and the wage orders.
  7. Raise it with the right agency. The Labor Commissioner may hold a hearing on a wage claim to decide whether a worker was misclassified, and the Employment Development Department (EDD) decides status for unemployment and disability benefits.

How does the ABC test work?

Labor Code section 2775(b)(1) applies the test for the Labor Code, the Unemployment Insurance Code and the Industrial Welfare Commission wage orders. The hiring business carries the burden on every part.

The ABC test, with the state's own examples
PartWhat the business must proveHow the state explains it
A. ControlYou are free from its control and direction in doing the work, both under the contract and in factA worker subject to the kind of control a business typically has over employees is an employee, even if the business does not control every detail
B. Usual course of businessThe work is outside the usual course of its businessA store hiring an outside plumber to fix a leak passes; a bakery hiring cake decorators to work regularly on its custom cakes does not
C. Independent businessYou are customarily engaged in an independently established trade or business of the same kindThe business must already exist, shown by steps like incorporation, licensing, advertising and offering services to the public; work that depends on a single employer fails this part

The examples above come from the Labor and Workforce Development Agency's ABC test page and the Labor Commissioner's independent contractor FAQ, which summarize the California Supreme Court's decision in Dynamex. The Labor Commissioner adds that contracted workers who fill a role comparable to an existing employee will likely be seen as working in the usual course of the business.

Are there exceptions to the ABC test?

Yes. For some occupations and arrangements the Labor Code uses an older multi-factor test (the Borello test) instead. The Labor Commissioner's list includes certain licensed professionals such as physicians, lawyers, architects, engineers and accountants, certain insurance agents and direct salespersons, and, only if additional conditions are met first, certain professional services contracts, referral agency arrangements, construction subcontracting and business-to-business relationships. Whether an exception applies depends on the details, and the business still has to meet the conditions the law sets.

Which test applies (Labor Commissioner summary)
SituationTest used
Most workersABC test (Lab. Code 2775)
Certain licensed physicians, dentists, lawyers, architects, engineers, accountants, insurance agents, securities brokers and home inspectorsBorello test
Certain professional services contracts, referral agency arrangements, construction subcontracts, single engagement events, motor club services and business-to-business contractsBorello test, only after the business meets added conditions
App-based rideshare and delivery driversBusiness and Professions Code 7451 (Proposition 22)
Certain real estate licensees and repossession agenciesBusiness and Professions Code rules
Where a court finds the ABC test cannot apply, for example because federal law preempts itBorello test

What do I lose if I am misclassified?

The Labor Commissioner explains that California's wage and hour laws, including minimum wage, overtime and meal and rest breaks, as well as workplace safety, unemployment insurance and retaliation laws, protect employees but not independent contractors. Employees can also ask state agencies like the Labor Commissioner to enforce those laws. If you are an employee, our page on how overtime is calculated in California covers the most common unpaid wage.

Expenses are another common loss. Labor Code section 2802 requires an employer to reimburse an employee for all necessary expenditures or losses incurred in direct consequence of doing the job, with interest from the date of the expense, and the reasonable costs of enforcing that right include attorney's fees (section 2802(c)). Workers treated as contractors may be paying for their own vehicles, phones, tools and supplies.

What penalties apply for willful misclassification?

Labor Code section 226.8 makes it unlawful to willfully misclassify an individual as an independent contractor, meaning to avoid employee status by voluntarily and knowingly misclassifying someone. It is also unlawful to charge such a worker fees or make deductions that would have been illegal for an employee.

Civil penalties under Labor Code section 226.8
FindingCivil penalty per violation
Willful misclassification$5,000 to $15,000
Willful misclassification as a pattern or practice$10,000 to $25,000

These amounts are in addition to any other penalties. When the Labor Commissioner enforces the section in a wage claim, it may instead recover them as damages payable to the employee (section 226.8(g)(2)), but an employee can recover either those damages or a civil penalty under Labor Code section 2699(a), not both, for the same violation. An employer found to have willfully misclassified workers can also be ordered to post a public notice about the violation for one year. Unpaid wages and other penalties are separate; see our overview of wage violation penalties in California.

What changes the answer?

Your occupation

If your work is on one of the Borello lists, the business does not have to pass the ABC test. Borello looks at many factors, with the right to control the manner and means of the work as a key one, alongside who supplies the tools and workplace, your investment and opportunity for profit or loss, and whether the work is an integral part of the business. Even under Borello, the Labor Commissioner says the worker is presumed to be an employee.

Whether you run a real business

For the business-to-business exception, the Labor Commissioner lists twelve conditions, including a written contract with the rate and due date of payment, a business location separate from the hiring business, the freedom to work for other clients, advertising to the public, your own tools and equipment, and the ability to set your own hours. If any condition is missing, the ABC test applies.

Whether you drive for an app

Under Business and Professions Code section 7451, an app-based rideshare or delivery driver is a contractor only if the company does not set the driver's dates, times or minimum hours, does not require accepting specific requests, and does not restrict work for other apps or other occupations, as the Labor Commissioner summarizes it.

When the work was done

The ABC test has applied to wage order claims since the Dynamex decision in 2018, to the rest of the Labor Code and to unemployment benefits from January 1, 2020, and to workers' compensation from July 1, 2020, according to the Labor Commissioner. For unemployment, the EDD uses the Borello test for work before 2020.

Which law is at stake

The Labor Commissioner says a worker can be an employee under California law even if not under federal law, such as the Fair Labor Standards Act, because the tests differ. The Unemployment Insurance Code also keeps its own exclusions for some kinds of service.

A worked example

For example, imagine a hypothetical house cleaner who works for a Glendale cleaning company. She signed an "independent contractor agreement," receives a 1099, and is paid a flat amount per house. The company assigns her houses each morning, sets her hours, requires its checklist, and she cleans only for this company. She buys her own supplies and drives her own car between jobs.

Under the ABC test, the company would have to prove all three parts. The daily assignments and checklist bear on part A. Cleaning houses is what the company sells, which bears on part B, much like the state's bakery example. Working for a single company with no business of her own bears on part C. The 1099 and the agreement do not decide the question. If she is an employee, her supply and mileage costs would fall under section 2802, and her hours would be measured against the minimum wage and overtime rules.

None of this predicts how her claim would come out. It tells her what to collect: the agreement, the daily assignments, her receipts and a log of her hours.

Common mistakes about contractor status

  • Treating the 1099 or the agreement as final. Labels and paperwork do not determine status; the test does.
  • Applying the federal test. California's tests are different, and a worker can be an employee here even if not under federal law.
  • Assuming the Labor Commissioner will not listen. It has no jurisdiction over true contractors, but it says it may hold a hearing to decide whether a worker was misclassified.
  • Throwing away receipts. Reimbursement under section 2802 carries interest from the date of each expense, so the dates matter.
  • Not applying for unemployment. The EDD says workers incorrectly classified as contractors may still qualify.
  • Waiting too long. Older weeks of unpaid wages drop off as the deadlines run.

What to do this week

  1. Gather your contract, invoices, 1099 forms and any messages showing how the company directs your work.
  2. Write down who sets your schedule, who supplies tools, and whether you work for anyone else.
  3. Collect receipts for vehicle, phone, tools and supplies, with dates.
  4. Keep a daily log of hours, including breaks; our page on missed meal and rest breaks explains what employees are owed.
  5. Check the time limits in our table of employment claim deadlines in California.
  6. Read how a claim moves through the Labor Commissioner's Los Angeles-area offices, which can decide misclassification at a hearing.

Frequently asked questions

What can I do if I think I am misclassified?

According to the Labor Commissioner, a worker can file a wage claim with its office, file a Report of Labor Law Violation when a group of workers is affected, or file a lawsuit. Our page on a Labor Commissioner wage claim or a lawsuit compares the two paths.

Can I get unemployment if I was paid as a contractor?

Possibly. The Labor Commissioner notes that the EDD uses the ABC test for work performed on or after January 1, 2020, and the EDD says workers who were incorrectly classified as independent contractors may still qualify.

Does the ABC test apply to volunteers and interns?

No. The Labor Commissioner says the ABC test decides employee versus contractor; separate standards decide whether someone is an employee rather than a volunteer or intern.

If I really am a contractor, do I have any protection?

Some. The City of Los Angeles Office of Wage Standards says the state's Freelance Worker Protection Act covers professional services contracts of $250 or more entered into on or after January 1, 2025. In the City of Los Angeles, the city's own ordinance for contracts of $600 or more still covers contracts made from July 1, 2023 to January 1, 2025, and later ones that state law does not cover.

Can I be fired for complaining about my classification?

The Labor Commissioner says a worker fired for complaining about being classified as a contractor, or about overtime, can file a retaliation complaint or sue, although it has no jurisdiction over workers who are in fact contractors. Our page on wrongful termination in violation of public policy explains firings for asserting legal rights.

Is a misclassified salaried worker owed overtime?

Once you are an employee, the next question is whether the job is exempt. Our page on whether a salaried job is really exempt explains the duties and salary test.

How can Glendale Law help?

Whether a worker is truly an independent contractor depends on how much control the company exercises and whether the work is part of its usual business. We review contracts, schedules, invoices and how the work is really done to determine what a client is owed. Workers in Glendale and nearby cities can read about the local agencies and courts on our Glendale employment lawyer page. Call (818) 244-9000 or request a consultation.

Paid as a contractor but treated like an employee?

Our Glendale team can review how your work is set up and explain what California's ABC test means for your pay and rights.

Request a Consultation