The ABC Test is 20th-century thinking for 21st-century work.
Created in 1937 for Great Depression-era workers, the ABC test requires today’s independent contractors to pass all three prongs, or to be reclassified as an employee. If you have numerous clients, you’d have to become an employee of each one, even if your business is organized as an LLC or S-Corp.
Supporters of ABC Test laws say they are about protecting exploited workers. But most of today’s independent contractors cannot pass strict interpretations of the ABC Test, because the nature of work has changed dramatically since the Great Depression. ABC Test laws are thus anti-independent contractor.
Here’s a look at each of prongs (A, B and C) of the outdated ABC test:
(A) the individual is free from control and direction in connection with the performance of the service, both under the contract for the performance of service and in fact
Would you fail Prong A?
Prong A is about “control,” as determined by the Department of Labor employee who gets your case. So, if you’re a French horn player who must arrive at a gig at a certain time, play certain songs while wearing a particular outfit, and follow the directions of an orchestra conductor, then you may be found in violation.
(B) the service is performed outside the usual course of the business of the employer
Would you fail Prong B?
Prong B is about the type of work you perform. So, if you’re a journalist, you write and edit for a living, just like the newspaper, magazine, or website that hires you to write an article. You may be found in violation.
(C) the individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed
Would you fail Prong C?
Prong C is about the number of clients you have, and whether you are performing work that’s different from your usual work. So, if you’re an accountant creating a tech startup, a stay-at-home mom performing 10 hours of work per week for one client, or a fighter pilot who wants to go on the speaker’s circuit, you may be found in violation.
The IRS Common Law Test: The solution we’ve had all along.
The IRS already has a test to determine who is, and is not, a legally operating independent contractor. It has evolved over the years to keep up with the changing nature of work in the United States, which means the IRS test can distinguish between a truly misclassified, exploited worker and a successful professional who works for herself.
The antiquated ABC test cannot make that distinction. Its old-fashioned language is why it attacks the livelihoods of our best and brightest in the creative class and beyond.
The US Department of Labor Test: New thinking about what independent contractor laws should be.
In September 2020, the US Department of Labor suggested a new test to distinguish between employees and independent contractors. Labor Secretary Eugene Scalia, when unveiling the proposed rule, wrote, “Our rule doesn’t aim to slant the analysis toward classifying independent contractors as employees. In part, that’s because we recognize there are powerful reasons why some workers prefer to be independent, rather than accountable to a company as its employee.”
We are FIGHT FOR FREELANCERS USA, a nonpartisan, grassroots coalition of independent contractors who oppose the use of the ABC Test in federal law. Join us.