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Bill Would Ditch Dynamex Test for Borello

  • State: California
  • Topic: WEST
  • - Popular with: Legal
The old test to determine whether a California worker is an employee would replace the new test that…

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George Corson Jan 18, 2020 a 4:01 pm PST

This whole thing just seems awkward.
1. Dynamex for all Labor issues, but Borello for WC.
2. Dynamex for all Labor issues, and Dynamex for WC if there are more than 100 Employees, but Borello for Employers with under 100.
3. Dynamex for Labor and WC if there are more than 100 Employees, but Borello for both if there are less than 100.

I agree that Dynamex has Logistical issues for a number of occupations who want to be Independent Contractors. I also see that different standards based upon size rather than occupation will not solve most of them. If WC classification/insurance is the true issue, just rule that a Worker who does not have a business license/business TIN at time of hire is presumed an Employee. Those are objective standards that can be controlled by everyone. It encourages business tracking, freedom of choice, and financial paper trails.

Want to be an Independent Journalist? Get a Business License/TIN and call yourself “Pulitzer Bob’s Stories for Hire.” Give that to the Newspaper and you get a 1099. Otherwise, the LA Times owns you as an Employee, and you get a W-2. The City can track the Business License and the FTB can track the money.

Is it perfect? Probably not, because you can parse any legal standard. Is it cleaner and easier to follow? I truly think it is.

Keith Pusavat Jan 18, 2020 a 8:01 pm PST

"Those are objective standards that can be controlled by everyone." Amen. It's pointless to use a 10-factor test as the standard, because there's so much subjectivity.


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