Hiring Entity:  When are gig workers employees?

Four Government Agencies & Courts:  It depends!

Trying to track the employment status of gig workers will make your head spin. Contractors? Employees? Super heroes?

In the last few weeks, four federal and California state agencies and courts — the US Department of Labor, the National Labor Relations Board, the Ninth Circuit Court of Appeals and the California Labor Commissioner — have all weighed in on the debate. And, the answer is — it depends.

Follow our script below to help make sense of the patchy legal landscape.


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In last Thursday’s Vazquez v. Jan-Pro Franchising, the Ninth Circuit made several impactful findings related to the infamous Dynamex decision:

  1. Aligning with several state court decisions supporting retroactivity, the Ninth Circuit ruled that Dynamex’s ABC test applies retroactively.
  2. It also applied Dynamex to a multi-level franchise structure, expanding the test beyond the independent contractor context.
  3. Last, the Court issued guidance to the district court on remand reaffirming the difficulty of “passing” the ABC test.


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With the modern workforce comes modern employment problems. Businesses and workers alike have embraced the “gig economy,” but employment laws were not designed for workforces dominated by independent contractors and freelancers. This disconnect leaves gig economy businesses open to significant liability where such workers should have been classified as employees under the law.


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On April 30, the California Supreme Court issued an opinion radically changing the legal landscape for any company engaging independent contractors in California. Dynamex Operations West Inc. v. The Superior Court of Los Angeles County changes the legal test for determining whether workers should be classified as employees or as independent contractors under California’s wage