From The National Law Review, Vanessa C. Krumbein raises the question as to whether Mary Poppins would be an employee or independent contractor under California’s AB5 statute. Vanessa writes:
Notably, AB 5 does not exempt teachers and tutors hired by parents – an issue that has recently gained attention in light of the pandemic’s impact on school openings. Although some are calling for Gov. Newsom to suspend the application of AB 5 to at-home teachers and tutors, he has yet to do so. This means parents should proceed with caution and take into consideration the factors of the ABC Test when they are deciding how to classify and pay their child’s tutor.
Parents should bear in mind that a teacher or tutor may qualify as an independent contractor if he or she is completely free from the direction and control of the hiring party (e.g., the parents), including, for example, in developing and teaching their own curriculum, setting their own teaching schedule, and even determining where the learning takes place.
To satisfy prong C of the ABC Test, parents may want to consider the following:
- Engage the services of a tutor who already has their own independently established business (meaning they are in the business of providing tutoring services to others and have formed their own legally recognized business to do so), and the parents should not use the tutor to perform any work outside of that engagement (such as performing household chores or providing childcare).
- If it turns out the tutor is providing service more akin to domestic help or a child care provider, the parent may consider classifying the worker as an employee rather than an independent contractor. This means the parent will also be responsible for complying with California’s wage and hour laws and paying payroll taxes, workers’ compensation insurance, and providing a host of other employee-related benefits to the worker.
As the consequences for contractor misclassification in California are severe, parents should review and comply with all legal requirements before engaging a tutor or teacher for their child’s learning.