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What Is the ABC Test for Classifying a Worker as an Independent Contractor?

What Is the ABC Test for Classifying a Worker as an Independent Contractor?

The difference between an independent contract and an employee is a major point of friction in employment law. Companies often misclassify workers as independent contractors, either intentionally or by mistake. When done intentionally, it’s usually an effort to save money by not having to pay for a worker’s health insurance and other benefits and not paying into the state unemployment fund. Since misclassification violates wage and hour law, employers must meet a heavy burden — known as the ABC test — to establish that the people who perform work for them are independent contractors and not employees.

The ABC test is a three-part analysis. An employer challenging the classification of a worker as an employee must satisfy all three parts of the test, namely:

  • Part A — The worker is “free from control or direction over the performance” of their work.
  • Part B — The service performed “is either outside the usual course of the business for which such service is performed” or it is performed “outside of all the places of business” controlled by the employer.
  • Part C — The worker is “customarily engaged in an independently established trade, occupation, profession or business.”

A recent New Jersey Supreme Court decision, East Bay Drywall, LLC v. Dept. of Labor and Workforce Development, underscored the importance of Part C of the test. The court said that when trying to decide whether a worker is truly independent, one must think about what would happen if the relationship between the worker and the company ended. If quitting or being fired would cause the worker to “join the ranks of the unemployed,” then that worker is probably an employee, not an independent contractor. On the other hand, if the worker could leave or be fired and still have work to do for other entities, that is evidence that the worker is running their own independent business, so a contractor classification could be appropriate.

The court emphasized that the ABC test applies to independent contractors in all industries. It specifically mentioned the construction industry, which is known for its use of contractors, subcontractors and sub-subcontractors. Construction workers, the court said, are particularly vulnerable to being misclassified by employers who try to avoid paying benefits and unemployment compensation. These attempted classifications are often sources of employment litigation.

At Deutsch Atkins & Kleinfeldt, P.C. in Hackensack, our New Jersey employment lawyers are highly experienced in employee misclassification claims. We help workers take on their employers and assert their legal rights. If you have questions or concerns about being classified as an independent contractor, please call our Hackensack office at 551-245-8894 or contact us online to arrange a confidential meeting.

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Neil H. Deutsch

About Neil H. Deutsch has been practicing law for over 35 years and is known as a skilled negotiator in employment and discrimination law. He believes in a bottom-line approach of risk analysis and cost effectiveness for his clients. "Case evaluation is something we take seriously," says Mr. Deutsch who seeks top net dollar for…

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Bruce L. Atkins
Senior Partner

About Bruce L. Atkins is regarded as one of New Jersey’s premier practitioners of employment and civil litigation. He has been selected to the New Jersey Super Lawyers prestigious list every year since 2005.  This honor, bestowed upon a recipient by the votes of his peers, is a powerful nod to the skill Mr. Atkins…

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Adam J. Kleinfeldt

About Adam J. Kleinfeldt joined Deutsch Atkins & Kleinfeldt, P.C. in March of 2015.  He primarily represents individuals in employment litigations such as discrimination, retaliation, and whistle blowing matters.  He has extensive experience in all phases of the litigation process. Adam has obtained significant results for some of his clients, including a $525,000 jury verdict…

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Diane Englander Peyser

About Diane Englander Peyser joined Deutsch Atkins & Kleinfeldt, P.C. in September 2018 where she represents employees in wrongful termination, retaliation, harassment, and discrimination matters. Prior to joining Deutsch Atkins & Kleinfeldt, P.C., Diane represented clients in all aspects of employment law on behalf of employees involving unemployment appeals, claims of sexual harassment, LGBT discrimination,…

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Debra M. McGarvey

About Debra M. McGarvey joined Deutsch Atkins & Kleinfeldt, P.C. in December 2019. She has extensive experience defending employees and employers in state and federal court in employment litigation matters. She has represented clients on various issues arising out of the New Jersey Law Against Discrimination (NJLAD), the New Jersey Conscientious Employee Protection Act (CEPA),…

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