4 ms·

Can anybody here with proper experience break down the "ABC" test for me? It seems to me like the "C" part (that the work is "part of a company’s regular busine

by Mizza 7y ago

Can anybody here with proper experience break down the "ABC" test for me? It seems to me like the "C" part (that the work is "part of a company’s regular business") applies to literally any company who would hire a freelancer to work on their product or service.

dmode 7y ago
Just read through the text of the bill, looks like the work you describe is explicitly exempted from the bill https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB5 https://leginfo.legislature.ca.gov/faces/billTextClient.xhtm...
- UK-Al05 7y ago
  When you have to exempt the majority of professions then it's just bill targeting specific companies which in my opinion is wrong.
  - dmode 7y ago
    The principle behind exemptions are those that already make far more than minimum wages, but I agree with your overall point
- 0xffff2 7y ago
  Can you point out exactly where you think this is exempted? Particularly, my reading is that a software company cannot contract out software development tasks under this bill.
droidno9 7y ago
There are exceptions for certain "professional services" providers if certain factors are satisfied. Curiously enough, software developer isn't one of the exceptions. (c) (1) Subdivision (a) and the holding in Dynamex do not apply to a contract for “professional services” as defined below, and instead the determination of whether the individual is an employee or independent contractor shall be governed by Borello if the hiring entity demonstrates that all of the following factors are satisfied: (A) The individual maintains a business location, which may include the individual’s residence, that is separate from the hiring entity. Nothing in this subdivision prohibits an individual from choosing to perform services at the location of the hiring entity. (B) If work is performed more than six months after the effective date of this section, the individual has a business license, in addition to any required professional licenses or permits for the individual to practice in their profession. (C) The individual has the ability to set or negotiate their own rates for the services performed. (D) Outside of project completion dates and reasonable business hours, the individual has the ability to set the individual’s own hours. (E) The individual is customarily engaged in the same type of work performed under contract with another hiring entity or holds themselves out to other potential customers as available to perform the same type of work. (F) The individual customarily and regularly exercises discretion and independent judgment in the performance of the services. "Professional services" include: (i) Marketing (ii) Administrator of human resources (iii) Travel agent services (iv) Graphic design (v) Grant writer (vi) Fine artist (vii) [IRS enrolled agent] (viii) Payment processing agent (ix) [Certain still photographer or photojournalist ... ] (x) [Certain freelance writer, editor, or newspaper cartoonist ... ] (xi) [Certain licensed esthetician, licensed electrologist, licensed manicurist, licensed barber, or licensed cosmetologist ... ] [And even more exceptions for real estate agents, repo people, etc.,.]
- C1sc0cat 7y ago
  Why am I not surprised its keeping us greasy engineers in their place. Just as in the UK actual Self employed contractors on a 3 month contract get hit by IR35 but Barristers working on the same case for a decade do not.
  - ken 7y ago
    I can think of many different ways to interpret your first sentence, so I'm not clear what you're saying, but this does make me wonder if it's going to lead to any sort of licensing or certification for general industry programmers. If workers in this field want to call themselves "software engineers" and gain the benefits of a professional title, like lawyers and architects, they're going to have to start following the other practices of professional fields. Just because a college dropout makes a popular webpage that sells a lot of advertising, that does not necessarily make him an "engineer".
    - balfirevic 7y ago
      > If workers in this field want to call themselves "software engineers" and gain the benefits of a professional title What are those benefits?
      - titanomachy 7y ago
        Good question. For doctors (in my country at least) it amounts to a government-enforced monopoly that keeps rates high. It would probably cause the low end of pay to go up for software engineers, but not affect the high end.
      - C1sc0cat 7y ago
        Quite I looked at going down the CENG route when I worked at BT via the BCS. 1 they kept changing the requirements 2 what are the benefits ironically as I started on the mech Engineering route I am more an "Engineer" than many other developers
zaarn 7y ago
If it works remotely similar to how fake self-employment works in germany then as a freelancer it's sufficient to show that you work for more than 1 company. If you exclusively work for 1 company, AND ONLY THAT COMPANY, as a freelancer in germany, you and the company you work for are at risk.
- thrav 7y ago
  I mean, most drivers work for both Uber and Lyft...
  - zaarn 7y ago
    Doesn't really matter, it concerns WHILE you work for Uber. OR for Lyft. People can have multiple jobs.
dnautics 7y ago
> applies to literally any company who would hire a freelancer to work on their product or service. IANAL but I imagine that's exactly the point. There are always incidentals, like let's say you're a restaurant and you need to hire a plumber to fix your toilet or if you're a real estate agent and you need to hire a programmer to do your website.
- hn_throwaway_99 7y ago
  No, those examples you give would be taken care of as part of the "B" part of the test. Plumbing and website design is certainly not the main business of restaurants and real estate agents. The problem becomes if you need to hire a freelance programmer to do some work for your software development company. There the "C" part of the test becomes a lot more of a gray area IMO.
  - dnautics 7y ago
    yeah that was my point.
  - deleted 7y ago
    [deleted]
  - 0xffff2 7y ago
    >The problem becomes if you need to hire a freelance programmer to do some work for your software development company. In that case, C is irrelevant because you've already failed B AFAICT. This law makes it so that it's simply not possible for a software company to contract out software jobs to individuals. It has to either contract the software to another company, or do the job in house with W2 employees. C, if my reading is correct, means that (ignoring licensing issues) you can't contract a carpenter to fix your plumbing.

by Mizza 7y ago

dmode 7y ago

Just read through the text of the bill, looks like the work you describe is explicitly exempted from the bill https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB5 https://leginfo.legislature.ca.gov/faces/billTextClient.xhtm...

UK-Al05 7y ago
When you have to exempt the majority of professions then it's just bill targeting specific companies which in my opinion is wrong.
- dmode 7y ago
  The principle behind exemptions are those that already make far more than minimum wages, but I agree with your overall point
0xffff2 7y ago
Can you point out exactly where you think this is exempted? Particularly, my reading is that a software company cannot contract out software development tasks under this bill.

droidno9 7y ago

There are exceptions for certain "professional services" providers if certain factors are satisfied. Curiously enough, software developer isn't one of the exceptions. (c) (1) Subdivision (a) and the holding in Dynamex do not apply to a contract for “professional services” as defined below, and instead the determination of whether the individual is an employee or independent contractor shall be governed by Borello if the hiring entity demonstrates that all of the following factors are satisfied: (A) The individual maintains a business location, which may include the individual’s residence, that is separate from the hiring entity. Nothing in this subdivision prohibits an individual from choosing to perform services at the location of the hiring entity. (B) If work is performed more than six months after the effective date of this section, the individual has a business license, in addition to any required professional licenses or permits for the individual to practice in their profession. (C) The individual has the ability to set or negotiate their own rates for the services performed. (D) Outside of project completion dates and reasonable business hours, the individual has the ability to set the individual’s own hours. (E) The individual is customarily engaged in the same type of work performed under contract with another hiring entity or holds themselves out to other potential customers as available to perform the same type of work. (F) The individual customarily and regularly exercises discretion and independent judgment in the performance of the services. "Professional services" include: (i) Marketing (ii) Administrator of human resources (iii) Travel agent services (iv) Graphic design (v) Grant writer (vi) Fine artist (vii) [IRS enrolled agent] (viii) Payment processing agent (ix) [Certain still photographer or photojournalist ... ] (x) [Certain freelance writer, editor, or newspaper cartoonist ... ] (xi) [Certain licensed esthetician, licensed electrologist, licensed manicurist, licensed barber, or licensed cosmetologist ... ] [And even more exceptions for real estate agents, repo people, etc.,.]

C1sc0cat 7y ago
Why am I not surprised its keeping us greasy engineers in their place. Just as in the UK actual Self employed contractors on a 3 month contract get hit by IR35 but Barristers working on the same case for a decade do not.
- ken 7y ago
  I can think of many different ways to interpret your first sentence, so I'm not clear what you're saying, but this does make me wonder if it's going to lead to any sort of licensing or certification for general industry programmers. If workers in this field want to call themselves "software engineers" and gain the benefits of a professional title, like lawyers and architects, they're going to have to start following the other practices of professional fields. Just because a college dropout makes a popular webpage that sells a lot of advertising, that does not necessarily make him an "engineer".
  - balfirevic 7y ago
    > If workers in this field want to call themselves "software engineers" and gain the benefits of a professional title What are those benefits?
    - titanomachy 7y ago
      Good question. For doctors (in my country at least) it amounts to a government-enforced monopoly that keeps rates high. It would probably cause the low end of pay to go up for software engineers, but not affect the high end.
    - C1sc0cat 7y ago
      Quite I looked at going down the CENG route when I worked at BT via the BCS. 1 they kept changing the requirements 2 what are the benefits ironically as I started on the mech Engineering route I am more an "Engineer" than many other developers

zaarn 7y ago

If it works remotely similar to how fake self-employment works in germany then as a freelancer it's sufficient to show that you work for more than 1 company. If you exclusively work for 1 company, AND ONLY THAT COMPANY, as a freelancer in germany, you and the company you work for are at risk.

thrav 7y ago
I mean, most drivers work for both Uber and Lyft...
- zaarn 7y ago
  Doesn't really matter, it concerns WHILE you work for Uber. OR for Lyft. People can have multiple jobs.

dnautics 7y ago

> applies to literally any company who would hire a freelancer to work on their product or service. IANAL but I imagine that's exactly the point. There are always incidentals, like let's say you're a restaurant and you need to hire a plumber to fix your toilet or if you're a real estate agent and you need to hire a programmer to do your website.

hn_throwaway_99 7y ago
No, those examples you give would be taken care of as part of the "B" part of the test. Plumbing and website design is certainly not the main business of restaurants and real estate agents. The problem becomes if you need to hire a freelance programmer to do some work for your software development company. There the "C" part of the test becomes a lot more of a gray area IMO.
- dnautics 7y ago
  yeah that was my point.
- deleted 7y ago
  [deleted]
- 0xffff2 7y ago
  >The problem becomes if you need to hire a freelance programmer to do some work for your software development company. In that case, C is irrelevant because you've already failed B AFAICT. This law makes it so that it's simply not possible for a software company to contract out software jobs to individuals. It has to either contract the software to another company, or do the job in house with W2 employees. C, if my reading is correct, means that (ignoring licensing issues) you can't contract a carpenter to fix your plumbing.