Independent Contractors (IC) are identified by the absence of an “employer-employee” relationship. In accordance with the California Supreme Court decision, Dynamex Operations West vs. Supreme Court, and Assembly Bill 5, the CSU and CSUSM Corporation adopts the ABC TEST to determine whether a person is an employee or an independent contractor. This test applies the presumption that all workers are employees, unless the employer can prove each of the following requirements:
- The worker is free from the campus’s control and direction. This means that the hiring entity must not be able to control or direct what the worker does, either by contract or in actual practice; and
- The worker performs a service that is either outside the usual course of the business for which such service is performed or that such service is performed outside of all the places of business of the enterprise for which such service is performed. For example, a campus cannot hire a faculty in counseling to work as an independent contractor for the purposes of conflict resolution or hire instructors to teach a certificate program as independent contractors. Nor can a campus hire an independent contractor to perform IT services that are already being performed by campus staff; and
- The worker customarily engages in an independently established trade, occupation, profession, or business. Factors relevant to this determination include whether the business is incorporated or licensed, whether the services are advertised, and whether the contractor also offers services to the public or other potential customers.
The determination of whether an individual should be classified as an independent
contractor or as an employee is not straightforward. It requires detailed analysis
of each situation’s unique circumstances. Because of recent changes in the law, past
approval of an individual as an independent contractor should not lead to a presumption
that the same classification will be made again. Convenience cannot be a determining
factor for classification. It is important to understand that misclassification can
result in serious financial penalties and consequences for the campus.
The following procedures are to be used to complete and submit the Independent Contractor Request Form. If the proposed Independent Contractor is a current CSUSM Corporation, CSU or State of California employee, DO NOT proceed with this Independent Contractor Request Form. There are also restrictions placed on those who have been employed by the State of California (including the CSU) in the past one to two years. Please contact Human Resources for further guidance.