ABC Construction LLC wants to hire a specialized concrete finisher for a 3-month project. The finisher has their own tools, sets their own schedule, and performs similar work for other contractors. Under AB 5, this arrangement would most likely be:
Correct Answer
A) Subject to the ABC test and may require employee classification
Even though the worker has tools and works for others, concrete finishing is within the usual course of a construction company's business, failing prong B of the ABC test, likely requiring employee classification.
Why This Is the Correct Answer
Under AB 5, the ABC test requires a worker to satisfy all three prongs to be classified as an independent contractor. Prong B requires that the work be 'outside the usual course of the hiring entity's business.' Concrete finishing is core to a construction company's operations, so this prong fails. Because the ABC test is not met, the arrangement is subject to employee classification scrutiny — making Option A correct.
Why the Other Options Are Wrong
Option B: Exempt from AB 5 requirements
AB 5 does provide certain exemptions (e.g., licensed professionals, specific occupations), but construction trade workers performing core construction tasks are not exempt. There is no blanket construction exemption under AB 5.
Option C: Clearly an employee relationship
While the relationship may ultimately require employee classification, it is not 'clearly' an employee relationship on its face — the ABC test must be applied first. The question asks what the arrangement 'most likely' is, and the correct framing is that it is subject to the test and may require classification.
Option D: Clearly an independent contractor relationship
Despite having own tools and working for multiple contractors (which might suggest independence under older common-law tests), the ABC test's Prong B is the critical factor here. Concrete finishing is within the usual course of a construction company's business, so the worker cannot be classified as an independent contractor under AB 5.
Memory Technique
Remember the ABC test with 'ABC = All three must pass.' Prong B = Business — ask: 'Is this work OUTSIDE the company's core BUSINESS?' For a construction company hiring a concrete finisher, the answer is NO — so Prong B fails, and independent contractor status fails.
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