Under AB 5, which party bears the burden of proof to show that a worker is an independent contractor?

Under AB 5, which party bears the burden of proof to show that a worker is an independent contractor?

• A. Worker
• B. Employer
• C. Labor Commissioner
• D. Court

Answer: (B)

Under AB 5, the party seeking to classify a worker as an independent contractor bears the burden to prove that status. This approach comes from the Dynamex decision, which established the ABC test and requires the employer to demonstrate all three elements: the worker is free from the employer’s control and direction in performing the work, the work is outside the usual course of the hiring entity’s business, and the worker is engaged in an independently established trade or business of the same type. If a worker challenges the classification, it’s the employer who must satisfy these criteria for the independent contractor designation to hold. The Labor Commissioner or a court does not automatically carry that burden on behalf of the worker; they assess the evidence to see if the employer has met the test.

Under AB 5, the party seeking to classify a worker as an independent contractor bears the burden to prove that status. This approach comes from the Dynamex decision, which established the ABC test and requires the employer to demonstrate all three elements: the worker is free from the employer’s control and direction in performing the work, the work is outside the usual course of the hiring entity’s business, and the worker is engaged in an independently established trade or business of the same type. If a worker challenges the classification, it’s the employer who must satisfy these criteria for the independent contractor designation to hold. The Labor Commissioner or a court does not automatically carry that burden on behalf of the worker; they assess the evidence to see if the employer has met the test.