[gamblor956]

Someone that I am hiring to perform a specific task, who is working remotely, who I will not be on-boarding, who will not be working closely with many employees, and who is paid upon completion of that task and then goes away, should be a contractor, even if they are doing work that is central to my business, and even if I closely monitor or specify how the work is to be completed.

Right, they would probably be treated as a contractor under the ABC test and the new law.

You're hung up on the "central to business" part of the test without paying attention to the nuance. Laws aren't black and white, they're many shades of grey.

If you're in the business of doing X, say programming widgets, then if you hire someone to do X (i.e, program widgets) for you, then that person will be an employee for all purposes of this law. Because they should be. They're literally doing your business activity for you, and there are plenty of legal reasons that you should be liable for their work--you're passing off their work as your own to the end customer.

OTOH, if you hire a contractor to program your back end, that guy wouldn't become an employee under the test, because you're not in the business of programming back ends. That back end may still be central to your business, but it's not your primary business activity (i.e., it's not your revenue-generating activity).

even if I closely monitor or specify how the work is to be completed.

This is the most misunderstood part of the ABC test. The ABC test doesn't require that the contractors have free reign to do whatever. It simply provides that a contractor should have free reign to accomplish the work unless the manner in which the project is completed is a relevant part of the contractual requirements. For example, specifying that a contractor program your backend in Node, with spaces instead of tabs, use git, and make use of specific AWS APIs, to match your standard coding practices in the rest of the project would be fine. Another example: telling a designer they must use Illustrator and specific design tools within Illustrator to match the processes or products of other designer work is also fine.

Monitoring work for purposes of quality assurance or quality control is also acceptable under the ABC test and is indeed even expected by the courts--not conducting QA/QC has been used as a factor indicating that the worker is an employee.

[zaroth]

> OTOH, if you hire a contractor to program your back end, that guy wouldn't become an employee under the test, because you're not in the business of programming back ends.

I have zero faith in the courts’ ability to distinguish this. In the case of Uber, their business is providing the back-end, and their revenue is a commission for doing all the back-end work. They are not in the business of driving cars — no Uber employee drives a car — and yet this bill would make the car drivers employees.

Similarly, I would have to expect someone working on any instrumental part of the product which generates revenue will fail the ABC Test.

If my product is a web API and I hire contractors to port my library to 17 different languages, pretty sure that is failing the ABC test.

If my product is food ordering, and I hire contractors to key in local restaurants’ menus into my database...

[xemdetia]

"I have zero faith in the courts’ ability to distinguish this. In the case of Uber, their business is providing the back-end, and their revenue is a commission for doing all the back-end work. They are not in the business of driving cars — no Uber employee drives a car — and yet this bill would make the car drivers employees."

I find this an interesting interpretation of how Uber defines their business. If Uber only provided the back-end for their work, the common consumer wouldn't know about Uber, you would know the driver directly and reach a deal with the driver directly. I would relate this most closely to things like in China where you can pay via WeChat or elsewhere with Square where they just facilitate the transfer of funds. They would be a distant party to the work actually being done.

Instead the average consumer knows Uber, goes to Uber with the goal of fulfilling their need of getting personal transport door-to-door, and the act is delivered by their contracted driver. They expect Uber to handle the complaint escalations, money handling, route planning, and basically everything related to that goal. If Uber provided only backend you could create your own frontend/theme to Uber for your local town (like you would a wordpress for a SMB) and create a business around just that. While there may be some back and forth on interpretation I think the real test is that based on all those steps that have to happen if the ride itself was omitted from all the services they created would Uber still be able to function and the answer is no which would make it part of the "usual course of the hiring entity's business." If Uber (not counting their other lines of business) didn't actually arrange rides for people, they aren't a company providing a marketable service anymore.

[zaroth]

If the CSS was omitted from my website it wouldn’t function very well either.... But I still think I should be able to hire a web designer on a contract basis to setup my CSS.

This is exactly why I think the ABC test is so disingenuous. It papers over the whole reason contracts are great — providing a single well defined service for a fixed price, and then moving on with life without worrying about a million regulations and forms and paperwork and insurance and hiring practices and workplace blahbity blah.