Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour and Labor Code Class Actions (22nd Edition) 17 Prior to Dynamex, California courts had applied the common-law Borello test, a flexible test that utilized nine factors to determine the alleged employer’s right to control the “manner and means” of the worker’s work. S.G. Borello & Sons, Inc. v Dep’t of Industrial Relations.83 These “Borello” factors include: whether the person performing services is engaged in an occupation or business distinct from that of the principal; whether the work is a part of the regular business of the principal or alleged employer; whether the principal or the worker supplies the instrumentalities, tools, and the place for the person doing the work; the alleged employee's investment in the equipment or materials required by the task and the employment of helpers; whether the service rendered requires a special skill; the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; the alleged employee's opportunity for profit or loss depending on his or her managerial skill; the length of time for which the services are to be performed; the degree of permanence of the working relationship; the method of payment, whether by time or by the job; and whether the parties believe they are creating an employer-employee relationship (this factor is relevant, but not determinative).84 Rejecting this Borello test, Dynamex concluded that the “exceptionally broad suffer or permit to work” test of California’s Wage Orders requires a more expansive definition of employment: the “ABC” test.85 The ABC test deems a worker to be an employee unless the hiring entity can show all three of the following factors: A. The worker is “free from control and direction of the hiring entity in connection with the performance of the work,” both in contract and in fact. 83 48 Cal. 3d 341 (1989). 84 California Department of Industrial Relations publication, “Independent Contractor Versus Employee” (summarizing Borello factors). Available here: https://www.dir.ca.gov/dlse/faq_independentcontractor.htm (last visited Apr. 14, 2022). 85 Dynamex, 4 Cal. 5th 903 at 952.
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