The Research Foundation may engage the services of an independent contractor (IC) on a short-term, intermittent, or an as-needed basis to perform specific tasks or services. These specific tasks or services are those not normally provided by Research Foundation employees. Independent contractors are not permitted to begin work on any tasks until all requisite approvals are obtained in writing, from all parties involved.
On September 18, 2019, Governor Gavin Newsom signed Assembly Bill 5 (AB 5) into law. The bill codifies the California Supreme Court’s “ABC test” for independent contractors as stated in the Dynamex Operations West, Inc. v. Superior Court of Los Angeles (2018) case.
AB 5 became law on January 1, 2020. It formally adds Section 2750.3 to the California Labor Code. Pursuant to AB 5, the “ABC test” must be used to determine whether or not a worker providing services to a California employer is an employee or an independent contractor. Under AB 5 and the ABC test, a worker in California is presumed to be an employee, unless an employer proves that the worker:
(A) Is free from the control and direction of the company in performing work, both practically and in the contractual agreement between the parties; and
(B) Performs work that is outside the usual course of the company’s business; and
(C) Is customarily engaged in an independently established trade, occupation, or business which is of the same nature as the work he or she performs for the company.
In cases where exceptions may occur, the Research Foundation Human Resources team will provide specific guidance and direction. In addition to ensuring compliance with updated applicable laws, there are steep penalties to organizations for mis-classifying a worker as an independent contractor. The Research Foundation will exercise caution and due diligence in its assessment of all requests to classify workers appropriately. The agreements below apply to California independent contractors.
The “ABC” test does not apply to out of state independent contractors. All out-of-state ICs must comply with their home resident state’s regulations regarding the establishment of an independent contractor agreement with the Research Foundation, a California corporation. The out-of-state IC will be asked to affirm that he or she has done so as a prerequisite for the granting of IC status with the Research Foundation. The Research Foundation will continue to use the multi-factor form (currently in use) to determine IC status for proposed out-of-state ICs. The agreements below apply to all out-of-state independent contractors.
The Research Foundation Independent Contractor Checklist and Agreement cannot be implemented until approvals, in writing, are obtained from the principal investigator, the director of HR (or their designee), the Sponsored Programs manager, and Research Foundation Purchasing. Independent contractors are not permitted to begin work until the IC agreement has been signed off by all parties.
Independent contractors can work for the Research Foundation only until the assigned project is completed. Contracts must specify the expected number of service days or months. If the need for services extends beyond the specified service period, a new independent contractor agreement must be established. Independent contractors are not permitted to work on multiple projects for the Research Foundation at the same time or on a series of projects over an extended period of time. Agreements that extend past the grant end date must be approved by of the Research Foundation's Sponsored Programs director (or his or her designee).