When is an independent contractor really my employee for California employment purposes?

Factors to consider when an employee is an independent contractor under California law were established in a 1989 California Supreme Court decision (S. G. Borello & Sons, Inc.). The primary test is “whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired.” If the answer is yes, the person is your employee under California law.

Other factors: The court also identified other “secondary factors.” These include:

  • whether the one performing services is engaged in a distinct occupation or business;
  • the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision;
  • the skill required in the particular occupation;
  • whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work;
  • the length of time for which the services are to be performed;
  • the method of payment, whether by the time or by the job;
  • whether or not the work is a part of the regular business of the principal; and
  • whether or not the parties believe they are creating the relationship of employer-employee.

The totality of circumstances is considered. This leaves California employers guessing as to whether a party is an independent contractor or employee. To be on the safe side, chose “employee” status in the absence of advice from a California lawyer.



(Reviewed 9-08)