Under AB5 ABC Test can a worker sign an independent contractor determine the worker’s status classification?
No. Being labeled an independent contractor, being required to sign an agreement stating that one is an independent contractor, or being paid as an independent contractor (that is, without payroll deductions and with income reported by an IRS Form 1099 rather than a W-2), is not what determines employment status.
The ABC test — or where appropriate, the Borello test or other standard under Labor Code sections 2775 et seq. — are used to determine employment status. An employer cannot change a person’s status from that of an employee to one of an independent contractor by requiring a written agreement to that effect or by giving them an IRS Form 1099 instead of a W-2.
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