Under AB5 and the Dynamex decision, which factor is NOT part of the ABC test used to determine if a worker can be classified as an independent contractor in California?
Correct Answer
C) The worker has been employed for less than 90 days
The ABC test established by Dynamex and codified in AB5 consists of three prongs: (A) freedom from control, (B) work outside usual business course, and (C) independently established trade/business. Duration of employment is not a factor in the ABC test for independent contractor classification under California law.
Why This Is the Correct Answer
The ABC test (from Dynamex and codified by AB5) has exactly three prongs: (A) freedom from control, (B) work outside the usual course of the hiring entity's business, and (C) independently established trade or business. Duration of employment — including any 90-day threshold — is not a factor in the ABC test at all.
Why the Other Options Are Wrong
Option A: The worker is free from control and direction of the hiring entity
Prong A of the ABC test IS about the worker being 'free from the control and direction of the hiring entity in connection with the performance of the work.' This is a legitimate part of the test, so it is NOT the correct answer to what is 'not' part of the test.
Option B: The worker is customarily engaged in an independently established trade or business
Prong C of the ABC test IS about the worker being 'customarily engaged in an independently established trade, occupation, or business.' This is a real prong, so it cannot be the answer to what factor is absent.
Option D: The worker performs work outside the usual course of the hiring entity's business
Prong B of the ABC test IS about the worker performing 'work that is outside the usual course of the hiring entity's business.' This is a real prong, making it an incorrect answer to the 'not part of the test' question.
Memory Technique
ABC test = Always three letters, always three prongs: A=Autonomy (free from control), B=Business type (outside normal business), C=Custom trade (independently established). '90 days' is a distractor — time served doesn't determine contractor status.
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