Guest Blog Post: Attorney Chris A. Schaefer, Esq. -- Can Industries Meet The ABC Test?
This is a guest blog post by attorney Chris A. Schaefer, Esq. who specializes in representing companies in fighting AB 5 and other legal matters. Originally this was from an email written to captioners and interpreters, but I think it would apply to court reporting as well.
The content and conclusion that your industry cannot meet the ABC test is inaccurate.
I am Chris Schaefer, an attorney with several clients in your industry and dozens in other industries re AB 5 and other legal matters. I have prepared captioners who are also court reporters to be witnesses in hearings. I have never represented a court reporting agency. But, not that many years ago I had never represented an interpretation agency. I have represented many small companies (dog walking, tutors, etc.) and big companies, NEC America, a subsidiary of AT&T, etc.
The type of company doesn’t matter. It does not take long to learn a company’s business model in relation to IC-EE status. Sometimes I do not even represent a company, but a group with commonality. Last November (2019) I went to Silicon Valley and represented 126 members of a software engineer society regarding AB 5’s impact on them.
You need to know that your industry DOES meet the ABC test. I have seven (7) EDD Appeals Board Decisions (“CUIAB”) over the last 4 years holding that interpreters (all categories) perform their services through agencies as independent contractors. I have not lost any interpreting cases; all holding IC status.
In those cases, my broad concept to prove “no control”, etc. under the now “old” Borello case, was none of the agencies performed interpreting services, except occasionally to keep a client happy when it could not contract with an IC interpreter. Each Administrative Law Judge agreed with the concept that the agency simply put together a Client (with a customer who needed interpreting services) with an interpreter (who was qualified to perform those services). THE EDD DID NOT APPEAL ANY OF THOSE DECISIONS.
In other words, the concept of “B” (“work … outside the usual course of the hiring entity’s business”) of the ABC test has already been tested in seven (7) EDD appealed cases. I have set up many companies in various industries (including yours) using this concept. If you really analyze “what is your business?”; I believe you will agree with the “match-maker” concept for an interpreting agency. Reality and truth has worked well in court.
I have represented over three hundred (300) companies against the EDD in employment tax audits –- won most at the audit level and won a vast majority of appealed cases before the CUIAB. I negotiated the law of independent contractor with the EDD’s lead tax counsel for the “Computer Services Industry” (i.e., Silicon Valley) in the 1980’s. I represent small businesses and over half my practice involves establishing workers as independent contractors and proving IC status against the State of CA.
I just wanted to set the record straight that your industry is not lost with the ABC test. You do have a choice. First, you may set up your interpretation services so they recognize satisfying the ABC test. Second, you may continue to attempt to pass an amendment to ABC exempting interpreters. Or, you may want to do both.
The choice is yours. If you chose to discuss this matter, please call or email me.
Thank you for your time.
Law Office of Chris A. Schaefer
San Rafael, CA 94903
Cell: (415) 299-1000
Tuesday, January 14, 2020