California: New Independent Contractor Test for Domestic Caregivers

In Duffey v. Tender Heart Home Care Agency, LLC, the California Court of Appeal recently applied yet another independent contractor test to domestic caregivers who are subject to the Domestic Worker Bill of Rights (DWBR). Specifically, the DWBR states that an employment relationship exists under two possible scenarios. First, employment occurs “when the hiring entity exercises control over the wages, hours, or working conditions of a domestic worker.” The court noted that an employer need only have control over one of these characteristics, not all three. Second, employment is also defined “when a common law employment relationship has been formed.” This is analyzed using the Borello test.

Ultimately, the court noted that there was evidence that the employer exercised control over the worker’s wages under the first test, and that the facts weighed in favor of a common law relationship under Borello. Although the standards for employment were taken directly from the DWBR, this ruling highlights a possible expansion of independent contractor tests based on industry. Employers must take extra care when determining independent contractor status to avoid liability for misclassification.