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<ns0:Id>20250AB__081698AMD</ns0:Id>
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<ns0:ActionText>INTRODUCED</ns0:ActionText>
<ns0:ActionDate>2025-02-19</ns0:ActionDate>
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<ns0:ActionText>AMENDED_ASSEMBLY</ns0:ActionText>
<ns0:ActionDate>2025-03-13</ns0:ActionDate>
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<ns0:SessionYear>2025</ns0:SessionYear>
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<ns0:AuthorText authorType="LEAD_AUTHOR">Introduced by Assembly Member Flora</ns0:AuthorText>
<ns0:Authors>
<ns0:Legislator>
<ns0:Contribution>LEAD_AUTHOR</ns0:Contribution>
<ns0:House>ASSEMBLY</ns0:House>
<ns0:Name>Flora</ns0:Name>
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<ns0:Title>An act to amend Section 2778 of the Labor Code, relating to employment. </ns0:Title>
<ns0:RelatingClause>employment</ns0:RelatingClause>
<ns0:GeneralSubject>
<ns0:Subject>Employment: employees and independent contractors: merchandisers.</ns0:Subject>
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<ns0:DigestText>
<html:p>Existing law requires a 3-part test, commonly known as the “ABC” test, to determine if workers are employees or independent contractors for purposes of the Labor Code, the Unemployment Insurance Code, and the wage orders of the Industrial Welfare Commission. Under the ABC test, a person providing labor or services for remuneration is considered an employee rather than an independent contractor unless the hiring entity demonstrates that the person is free from the control and direction of the hiring entity in connection with the performance of the work, the person performs work that is outside the usual course of the hiring entity’s business, and the person is customarily engaged in an independently established trade, occupation, or business. Existing law charges the Labor Commissioner with the
enforcement of labor laws, including worker classification </html:p>
<html:p>Existing law exempts certain occupations and business relationships from the application of the ABC test described above. Existing law, instead, provides that these exempt relationships are governed by the multifactor test previously adopted in the case of S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341. These exemptions include professional services provided by graphic designers, fine artists, content contributors, and various others, subject to meeting specified conditions.</html:p>
<html:p>This bill would create an exemption for a merchandiser contracting with a bona fide business or hiring entity to
provide stand-alone in-store inventory and product placement labor or services on behalf of retailers and brands in the consumer-packaged goods industry, as specified.</html:p>
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<ns0:Preamble>The people of the State of California do enact as follows:</ns0:Preamble>
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<ns0:Num>SECTION 1.</ns0:Num>
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Section 2778 of the
<ns0:DocName>Labor Code</ns0:DocName>
is amended to read:
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<ns0:Num>2778.</ns0:Num>
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<html:p>
(a)
<html:span class="EnSpace"/>
Section 2775 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:
</html:p>
<html:p>
(1)
<html:span class="EnSpace"/>
The individual maintains a business location, which may include the individual’s residence, that is separate from the hiring entity. Nothing in this paragraph prohibits an individual from choosing to perform services at the location of the hiring entity.
</html:p>
<html:p>
(2)
<html:span class="EnSpace"/>
If work is performed more than six months after the effective date of this section and the work is performed in a
jurisdiction that requires the individual to have a business license or business tax registration, the individual has the required business license or business tax registration in order to provide the services under the contract, in addition to any required professional licenses or permits for the individual to practice in their profession.
</html:p>
<html:p>
(3)
<html:span class="EnSpace"/>
The individual has the ability to set or negotiate their own rates for the services performed.
</html:p>
<html:p>
(4)
<html:span class="EnSpace"/>
Outside of project completion dates and reasonable business hours, the individual has the ability to set the individual’s own hours.
</html:p>
<html:p>
(5)
<html:span class="EnSpace"/>
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.
</html:p>
<html:p>
(6)
<html:span class="EnSpace"/>
The individual customarily and regularly exercises discretion and independent judgment in the performance of the services.
</html:p>
<html:p>
(b)
<html:span class="EnSpace"/>
For purposes of this section:
</html:p>
<html:p>
(1)
<html:span class="EnSpace"/>
An “individual” includes an individual providing services as a sole proprietor or other business entity.
</html:p>
<html:p>
(2)
<html:span class="EnSpace"/>
“Professional services” means services that meet any of the following:
</html:p>
<html:p>
(A)
<html:span class="EnSpace"/>
Marketing, provided that the contracted work is original and creative in character and the result of which depends primarily on the invention, imagination, or talent of the individual or work that is an essential part of or necessarily incident to any of the contracted work.
</html:p>
<html:p>
(B)
<html:span class="EnSpace"/>
Administrator of human resources, provided that the contracted work is predominantly intellectual and varied in character and is of such character that the output produced or the result accomplished cannot be standardized in relation to a given period of time.
</html:p>
<html:p>
(C)
<html:span class="EnSpace"/>
Travel agent services provided by either of the following:
</html:p>
<html:p>
(i)
<html:span class="EnSpace"/>
A person regulated by the Attorney General under Article 2.6 (commencing with Section 17550) of Chapter 1 of Part 3 of Division 7 of the Business and Professions Code.
</html:p>
<html:p>
(ii)
<html:span class="EnSpace"/>
An individual who is a seller of travel within the meaning of subdivision (a) of Section 17550.1 of the Business and Professions Code and who is exempt from the registration under subdivision (g) of Section 17550.20 of the Business and Professions Code.
</html:p>
<html:p>
(D)
<html:span class="EnSpace"/>
Graphic design.
</html:p>
<html:p>
(E)
<html:span class="EnSpace"/>
Grant writer.
</html:p>
<html:p>
(F)
<html:span class="EnSpace"/>
(i)
<html:span class="EnSpace"/>
Fine artist.
</html:p>
<html:p>
(ii)
<html:span class="EnSpace"/>
For the purposes of this subparagraph, “fine artist” means an individual who creates works of art to be appreciated primarily or solely for their imaginative, aesthetic, or intellectual content, including drawings, paintings, sculptures, mosaics, works of calligraphy, works of graphic art, crafts, or mixed media.
</html:p>
<html:p>
(G)
<html:span class="EnSpace"/>
Services provided by an enrolled agent who is licensed by the United States Department of the Treasury to practice before the Internal Revenue Service pursuant to Part 10 of Subtitle A of Title 31 of the Code of Federal Regulations.
</html:p>
<html:p>
(H)
<html:span class="EnSpace"/>
Payment processing agent through an
independent sales organization.
</html:p>
<html:p>
(I)
<html:span class="EnSpace"/>
Services provided by any of the following:
</html:p>
<html:p>
(i)
<html:span class="EnSpace"/>
By a still photographer, photojournalist, videographer, or photo editor who works under a written contract that specifies the rate of pay and obligation to pay by a defined time, as long as the individual providing the services is not directly replacing an employee who performed the same work at the same volume for the hiring entity; the individual does not primarily perform the work at the hiring entity’s business location, notwithstanding paragraph (1) of subdivision (a); and the individual is not restricted from working for more than one hiring entity. This subclause is not applicable to a still photographer, photojournalist, videographer, or photo editor who works on motion pictures, which is inclusive of, but is not limited to, theatrical or commercial productions, broadcast news, television,
and music videos. Nothing in this section restricts a still photographer, photojournalist, photo editor, or videographer from distributing, licensing, or selling their work product to another business, except as prohibited under copyright laws or workplace collective bargaining agreements.
</html:p>
<html:p>
(ii)
<html:span class="EnSpace"/>
To a digital content aggregator by a still photographer, photojournalist, videographer, or photo editor.
</html:p>
<html:p>
(iii)
<html:span class="EnSpace"/>
For the purposes of this subparagraph the following definitions apply:
</html:p>
<html:p>
(I)
<html:span class="EnSpace"/>
“Photo editor” means an individual who performs services ancillary to the creation of digital content, such as retouching, editing, and keywording.
</html:p>
<html:p>
(II)
<html:span class="EnSpace"/>
“Digital content aggregator” means a licensing intermediary that obtains a license or assignment of copyright from a still
photographer, photojournalist, videographer, or photo editor for the purposes of distributing that copyright by way of sublicense or assignment, to the intermediary’s third-party end users.
</html:p>
<html:p>
(J)
<html:span class="EnSpace"/>
Services provided by a freelance writer, translator, editor, copy editor, illustrator, or newspaper cartoonist who works under a written contract that specifies the rate of pay, intellectual property rights, and obligation to pay by a defined time, as long as the individual providing the services is not directly replacing an employee who performed the same work at the same volume for the hiring entity; the individual does not primarily perform the work at the hiring entity’s business location, notwithstanding paragraph (1) of subdivision (a); and the individual is not restricted from working for more than one hiring entity.
</html:p>
<html:p>
(K)
<html:span class="EnSpace"/>
Services provided by an individual as a content contributor,
advisor, producer, narrator, or cartographer for a journal, book, periodical, evaluation, other publication or educational, academic, or instructional work in any format or media, who works under a written contract that specifies the rate of pay, intellectual property rights and obligation to pay by a defined time, as long as the individual providing the services is not directly replacing an employee who performed the same work at the same volume for the hiring entity, the individual does not primarily perform the work at the hiring entity’s business location notwithstanding paragraph (1) of subdivision (a); and the individual is not restricted from working for more than one hiring entity.
</html:p>
<html:p>
(L)
<html:span class="EnSpace"/>
Services provided by a licensed esthetician, licensed electrologist, licensed manicurist, licensed barber, or licensed cosmetologist provided that the individual:
</html:p>
<html:p>
(i)
<html:span class="EnSpace"/>
Sets their own rates,
processes their own payments, and is paid directly by clients.
</html:p>
<html:p>
(ii)
<html:span class="EnSpace"/>
Sets their own hours of work and has sole discretion to decide the number of clients and which clients for whom they will provide services.
</html:p>
<html:p>
(iii)
<html:span class="EnSpace"/>
Has their own book of business and schedules their own appointments.
</html:p>
<html:p>
(iv)
<html:span class="EnSpace"/>
Maintains their own business license for the services offered to clients.
</html:p>
<html:p>
(v)
<html:span class="EnSpace"/>
If the individual is performing services at the location of the hiring entity, then the individual issues a Form 1099 to the salon or business owner from which they rent their business space.
</html:p>
<html:p>
(vi)
<html:span class="EnSpace"/>
This subparagraph shall become inoperative, with respect to licensed manicurists, on January 1, 2025.
</html:p>
<html:p>
(M)
<html:span class="EnSpace"/>
A specialized performer hired by a performing arts company or organization to teach a master class for no more than one week. “Master class” means a specialized course for limited duration that is not regularly offered by the hiring entity and is taught by an expert in a recognized field of artistic endeavor who does not work for the hiring entity to teach on a regular basis.
</html:p>
<html:p>
(N)
<html:span class="EnSpace"/>
Services provided by an appraiser, as defined in Part 3 (commencing with Section 11300) of Division 4 of the Business and Professions Code.
</html:p>
<html:p>
(O)
<html:span class="EnSpace"/>
Registered professional foresters licensed pursuant to Article 3 (commencing with Section 750) of Chapter 2.5 of Division 1 of the Public Resources Code.
</html:p>
<html:p>
(P)
<html:span class="EnSpace"/>
A merchandiser contracting with a bona fide business or hiring entity to provide stand-alone in-store inventory and product placement labor or services on behalf of retailers and brands in the consumer-packaged goods industry, subject to meeting all of the following conditions:
</html:p>
<html:p>
(i)
<html:span class="EnSpace"/>
The individual voluntarily registers as a merchandiser with a business or hiring entity offering stand-alone in store inventory and product placement labor or services to retailers and brands in the consumer-packaged goods industry.
</html:p>
<html:p>
(ii)
<html:span class="EnSpace"/>
The merchandiser can freely negotiate or voluntarily accept the terms of remuneration in return for completion of the labor or services.
</html:p>
<html:p>
(iii)
<html:span class="EnSpace"/>
The labor or services are performed by the merchandiser without supervision, direction, or control of the business or hiring entity.
</html:p>
<html:p>
(iv)
<html:span class="EnSpace"/>
The business or hiring entity carries private occupational accident insurance for individuals registering as merchandisers.
</html:p>
<html:p>
(v)
<html:span class="EnSpace"/>
The business or hiring entity does not require the merchandiser to accept any specific contract for labor or services, undergo training, or provide specialized equipment or tools.
</html:p>
<html:p>
(vi)
<html:span class="EnSpace"/>
Outside of the contract for labor or services, the business or hiring entity does not restrict the merchandiser from engaging with or performing work through other businesses or companies.
</html:p>
<html:p>
(c)
<html:span class="EnSpace"/>
Section 2775 and the holding in Dynamex do not apply to the following, which are subject to the Business and Professions Code:
</html:p>
<html:p>
(1)
<html:span class="EnSpace"/>
A real estate licensee licensed by
the State of California pursuant to Division 4 (commencing with Section 10000) of the Business and Professions Code, for whom the determination of employee or independent contractor status shall be governed by subdivision (b) of Section 10032 of the Business and Professions Code. If that section is not applicable, then this determination shall be governed as follows:
</html:p>
<html:p>
(A)
<html:span class="EnSpace"/>
For purposes of unemployment insurance by Section 650 of the Unemployment Insurance Code.
</html:p>
<html:p>
(B)
<html:span class="EnSpace"/>
For purposes of workers’ compensation by Section 3200 et seq.
</html:p>
<html:p>
(C)
<html:span class="EnSpace"/>
For all other purposes in the Labor Code by Borello. The statutorily imposed duties of a responsible broker under Section 10015.1 of the Business and Professions Code are not factors to be considered under the Borello test.
</html:p>
<html:p>
(2)
<html:span class="EnSpace"/>
A
home inspector, as defined in Section 7195 of the Business and Professions Code, and subject to the provisions of Chapter 9.3 (commencing with Section 7195) of Division 3 of that code.
</html:p>
<html:p>
(3)
<html:span class="EnSpace"/>
A repossession agency licensed pursuant to Section 7500.2 of the Business and Professions Code, for whom the determination of employee or independent contractor status shall be governed by Section 7500.2 of the Business and Professions Code, if the repossession agency is free from the control and direction of the hiring person or entity in connection with the performance of the work, both under the contract for the performance of the work and in fact.
</html:p>
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