Employee or Independent Contractor?

One Very Good Reason to Make Sure Your Contractor is Licensed 

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From JDSupra, Garret Murai discusses a case in which a homeowner was liable for damages because a statute created a rebuttable presumption a worker was an employee and not an independent contractor if a license was required and the worker did not have a license.  Garret writes:

On appeal, the Court of Appeals focused on Labor Code section 2750.5 which provides that there is a “rebuttable presumption” that a worker performing services for which a contractor’s license is required is an employee not an independent contractor:

There is a rebuttable presumption affecting the burden of proof that a worker performing services for which a license is required . . ., or who is performing such services for a person who is required to obtain such a license is an employee rather than independent contractor.

Section 2750.5 goes on to list three factors used to rebut the presumption that an individual was an independent contractor rather than an employee:

(a) That the individual has the right to control and discretion as to the manner of performance of the contract for services in that the result of the work and not the means by which it is accomplished is the primary factor bargained for.

(b) That the individual is customarily engaged in an independently established business.

(c) That the individual’s independent contractor status is bona fide and not a subterfuge to avoid employee status. . . .

. . . [and that] any person performing any function or activity for which a license is required . . . shall hold a valid contractor’s license as a condition of having independent contractor status.

Finally, Section 2750.5 provides that in addition to factors (a), (b) and (c), if a person was required to hold a contractor’s license, that individual will be deemed an employee unless that person held a valid contractor’s license:

In addition to the factors contained in subdivisions (a), (b), and (c), any person performing any function or activity for which a license is required . . . shall hold a valid contractors’ license as a condition of having independent contractor status.

Because Gomez performed work in which a contractor’s license was required, held the Court of Appeals, Vasilas had not rebutted the presumption that Gomez was an employee rather than an independent contractor, and therefore, Vasilas had failed to meet his burden of showing that he was not responsible for erection of the scaffolding that collapsed and injured Blackwell:

To establish that Gomez was an independent contractor (as opposed to Vasilas’s employee), in addition to presenting evidence of the requisite factors to determine independent contractor status under subdivision (a), (b) and (c) of Section 2750.5, Vasilas also was required to present evidence that Gomez was licensed. . . . Not having presented any evidence as to Gomez’s licensure – either that Gomez had the required license or that no license was needed for the services Gomez performed – Vasilas did not meet his initial burden of establishing that Gomez was an independent contractor. For this reason, the evidentiary burden never shifted to Blackwell to establish the existence of a triable issue of material fact.

Read the full story at One Very Good Reason to Make Sure Your Contractor is Licensed 

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