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May 13, 2010
Unemployment and Workers’ Compensation Tests for Classifying Workers

Maria Anastas discusses tests for worker classification in a BLR webinar entitled ‘Employee versus Independent Contractor: Where’s the Line? How to Make the Proper Call and Stay Out of Court’. She explains that tests for classifying workers as either being independent contractors or employees include Unemployment and Workers’ Compensation Tests. According to Anastas:

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  • More than half of states use the ‘ABC’ test (or a variation thereof)
  • This is broader than the common law test
  • Under the ABC test, the individual in issue is an employee unless: a) the individual is free from control or direction in the performance of the work; b) the work is done outside the usual course of the firm’s business and is done off the premises of the business; and c) the individual is customarily engaged in an independent trade, occupation, profession or business
  • States that do not use the ABC test generally use the common law test
  • Coverage under various state laws needs to be analyzed carefully on a state-by-state basis

Maria Anastas is a partner in the San Francisco office of law firm Ogletree, Deakins, Nash, Smoak & Stewart, PC ( ). She represents employers in labor and employment law matters exclusively, with a primary emphasis on traditional labor matters. She also devotes a substantial portion of her practice to providing employers with practical advice on a wide variety of employment law issues. She can be reached at

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