resulting in the prevailing worker being entitled to a benefit bestowed by
labor codes favorable to employees. The burden is now on the employer having to
prove the worker was not an employee, but an independent contractor.
I commonly train private
investigators and private patrol operators.
AB
No. 5 has no bearing on private investigators since they are excluded by
the new law
(CA
Labor Code 2750.3. (b) (3)). But, you’re not off the hook yet Private
Investigators. Read towards the bottom.
The way the law is written,
Governor Gavin Newsom (D) and the bill’s author, State Senator Lorena Gonzalez
(D), did not exclude private patrol operators and for this reason, patrol
operators must be acquainted with AB No. 5.
Labor Code 2750.3. (a)(1) was one of the codes created by AB No. 5. This law says that an employer (such as a private patrol operator) must only classify a worker
(known below as a “person.”) as an independent contractor if:
(A) The person
is free from the control and direction of the hiring entity in connection with
the performance of the work, both under the contract for the performance of the
work and in fact.
(B) The person
performs work that is outside the usual course of the hiring entity’s business.
(C) The person
is customarily engaged in an independently established trade, occupation, or
business of the same nature as that involved in the work performed.
In the private security industry,
it is a common practice for private patrol operators to pay “under the table”
to security officers for large events and for this reason, AB No. 5 will affect
this practice (and any practice of misclassifying a worker as an independent contractor). Paying under the table, refers to paying a worker cash after the
assignment or anytime thereafter. Although it’s not unlawful to pay a worker
cash, most of the time when a worker is paid under the table, the employer
classifies the worker as an independent contractor to avoid payroll costs, insurance costs, benefit obligations, and training requirements.
Additionally, private patrol operators who do not have a payroll
structure set up, are more inclined to unlawfully classify workers as
independent contractors. Penalties for misclassifying workers include, but are
not limited to, attorney fees and workers’ compensation fines, as well as paying
back with interest, Social Security Admin. penalties, Medicare penalties, and the Employment Development penalties for unpaid unemployment insurance.
If you are a private patrol
operator and need to hire a security officer worker as an independent
contractor make sure that (1) the worker has his/her own private patrol
operator license and (2) the worker does not fall within Labor Code 2750.3.
(a)(1) or other relevant laws.
In addition, the following
factors are to be considered in determining an individual’s status as an
independent contractor:
1. The
individual performs services in an occupation or business distinct from that of
the principal;
2. The work
performed is not part of the regular business of the principal;
3. The
individual supplies his/her own instrumentalities, tools and the work place;
4. The
individual has made a significant investment in the equipment or materials
required for his or her task(s);
5. The
individual's services require a unique skill in a particular occupation;
6. The
individual's occupation in the locality is usually done by a specialist without supervision;
7. The
individual’s opportunity for profit or loss depends on his/her own managerial
skill;
8. The time for
which the services are to be performed is reasonably limited to the task(s) for
which the individual was hired;
9. The working
relationship between the individual and the employer is reflective of the time
allotted to perform the task(s) for which the individual was hired;
10. The method
of payment is time certain or project specific;
11. The parties
do not believe they are creating an employer-employee relationship.
12. The
individual has the right to control and discretion as to the manner of
performance of the contract for services but not the means by which the work is
accomplished; (Labor Code Section 2750.5)
13. The
individual is customarily engaged in an independently established business;
(Labor Code Section 2750.5)
14. The
individual's independent contractor status is bona fide and not a subterfuge to
avoid employee status; (Labor Code Section 2750.5)
15. The
individual has a substantial investment in the business other than personal
services; (Labor Code Section 2750.5)
16. The
individual holds him/herself out to be in business for him/herself; (Labor Code
Section 2750.5)
17. The
individual bargains for a contract to complete a specific project for
compensation by project rather than by time; (Labor Code Section 2750.5)
18. The
individual has control over the time and place the work is performed; (Labor
Code Section 2750.5)
19. The
individual hires his/her own employees; (Labor Code Section 2750.5)
20. The
individual holds a license to perform the work; (Labor Code Section 2750.5)
21. The
relationship is not severable or terminable at will by the principal but gives
rise to an action for breach of contract. (Labor Code Section 2750.5)
Disclaimer: I am not an attorney and no information discussed here
cannot be construed as legal or professional advice. I am not associated with the Bureau of Security and Investigative Services. You should not make any financial,
professional, or legal decisions based on the information in this discussion
without the advice of a licensed attorney in your jurisdiction. The information
may be incorrect. Engage at your own risk.
S/
Shaun E. Sundahl, Author of The Legal Investigator and the Private Patrol Operator.
