Key Takeaways: The Borello test is California’s common law, multifactor standard for classifying workers as employees or independent contractors, focusing on the hiring entity’s control over work performance. Named after a 1989 California Supreme Court decision, it weighs 11 factors, with the hiring entity’s right to control the manner and means of work being the most significant consideration alongside additional secondary factors such as who supplies tools, whether work is integral to the business, and the permanence of the relationship, with no single factor being decisive. Borello applies when the stricter ABC test cannot be used, typically because a statutory exemption (like referral agency, professional services, or certain licensed occupations) routes the case back to it. Even with an exemption, Borello presumes employee status and places the burden of proof on the hiring entity. Misclassification strips away overtime, meal and rest breaks, and expense reimbursement owed to employees.
The Borello test is California’s common law, multifactor standard for determining whether a worker is an employee or independent contractor, centering on the hiring entity’s control over the manner and means of work. It applies when the more rigid "ABC test" does not, usually because a statutory exemption steers the analysis back to Borello. If you received a 1099 but are treated like an employee, your classification controls your right to overtime, meal and rest breaks, expense reimbursement, and other wage protections.
If you suspect misclassification, MSD Lawyers can help evaluate your rights. Call 213-401-0823 or request a confidential case review through the firm’s consultation page to discuss your situation with a legal team that represents workers, not employers.
The Borello Test Definition Every Worker Should Know
The Borello test takes its name from a 1989 California Supreme Court decision, S.G. Borello & Sons, Inc. v. Department of Industrial Relations, which anchored classification in the hiring entity’s right to control the work. Control need not be direct, exercised, or detailed to point toward employee status. This common law control test remains the fallback framework across many California classification disputes.
At its core, the test asks who controls the manner of performance rather than only the result. Under California Labor Code § 2750.5 (official source: leginfo.legislature.ca.gov), which governs work requiring a contractor’s license, a genuine independent contractor must have the right to control and discretion over how work is done. When a company dictates the how, the how-fast, and the how-often, that control weighs heavily toward employee status.
💡 Pro Tip: Save texts, schedules, and emails showing the company directing your daily tasks. Evidence of control is often the most persuasive in a borello test california analysis.
The Borello Test California Standard Explained Factor by Factor
Under the borello test california courts apply, no single factor is decisive, and judges weigh 11 factors, with the hiring entity’s right to control the manner and means of work being the most significant consideration alongside additional secondary factors. According to the California Franchise Tax Board’s worker classification FAQ (official source: ftb.ca.gov), these secondary considerations round out the picture when control alone does not settle the issue.
Courts and agencies commonly examine:
- Whether the worker holds themselves out as a separate, independently established business
- Whether the work is integral to the hiring entity’s usual business
- Who supplies the tools, instrumentalities, and workplace
- Whether the work requires particular skill
- The worker’s opportunity for profit or loss based on managerial skill
- The permanence of the working relationship and method of payment
- Whether the relationship is terminable at will
These mirror the independent contractor indicators in California Labor Code § 2750.5(b) and (c) (official source: leginfo.legislature.ca.gov), which reference an independently established business and bona fide independent contractor status.
A rebuttable presumption often works in a worker’s favor from the start. For services requiring a contractor’s license, California Labor Code § 2750.5 (official source: leginfo.legislature.ca.gov) creates a rebuttable presumption that the worker is an employee, placing the burden on the hiring party to prove otherwise; where the worker lacks the required license, courts have held that presumption cannot be rebutted at all.
When Does Borello Apply Instead of the ABC Test?
Borello generally applies when the ABC test cannot be used, which most often happens because a statutory exemption applies. As the Franchise Tax Board explains, AB 2257 repealed AB 5’s provisions and reenacted similar rules in California Labor Code § 2775 (official source: leginfo.legislature.ca.gov) through Section 2787, which later bills have further modified. Because the ABC test governs most workers by default, the first step in any california worker classification question is checking whether an exemption applies.
Borello can also apply for procedural and federal-law reasons. Where a court determines the ABC test cannot apply for a reason other than an express exception, or where federal law preempts the ABC test, Borello will govern. For background on how these classification frameworks interact nationally, the Congressional Research Service published a helpful worker classification report.
The difference between the two tests can change your case’s outcome. Both presume employee status and place the burden on the hiring entity, but the ABC test fails entirely if any one prong is unmet, while Borello weighs all relevant facts. That structural difference generally makes Borello more flexible for hiring entities.
| Feature | Borello Test | ABC Test |
|---|---|---|
| Origin | 1989 Supreme Court case | Codified after Dynamex |
| Method | Weighs 11 factors, none decisive | Three prongs, all required |
| Burden | On hiring entity | On hiring entity |
| Failure point | Overall balance of factors | Any single unmet prong |
To see how the stricter three-prong standard works in a gig context, review this explanation of the ABC test for gig workers.
Exemptions That Route Your Case Back to Borello
A key example arises when a service provider reaches clients through a referral agency. Under California Labor Code § 2777(a) (official source: leginfo.legislature.ca.gov), the employee-versus-contractor determination is governed by Borello only if the referral agency proves all eleven cumulative criteria are satisfied, including: the provider is free from the agency’s control; the provider holds any required business license or tax registration; the provider holds any applicable professional licensure or certification; services are delivered under the provider’s own name (not the agency’s); the provider supplies their own tools; the provider is customarily engaged in an independently established business; the provider sets their own rates (without deduction by the agency) or negotiates them directly; and the provider is free to accept or reject clients without penalty. These conditions are cumulative.
The professional services exemption is another common trigger. Under California Labor Code § 2778 (official source: leginfo.legislature.ca.gov; see also Labor Code § 2778), Section 2775 and the Dynamex holding do not apply to qualifying professional services contracts, and classification is instead decided under Borello. Enumerated occupations include marketing, human resources administrators, travel agents, graphic designers, grant writers, fine artists, enrolled agents, certain photographers and freelance writers, translators, home inspectors, appraisers, and registered professional foresters.
💡 Pro Tip: Being listed in an exempt occupation does not automatically make you a contractor. The exemption only changes which test applies.
The exemption itself is conditional, not automatic. The hiring entity must prove several factors, including a separate business location, a required business license or tax registration, the ability to set or negotiate rates, control over one’s own hours outside project deadlines, customarily providing the same services to others, and regularly exercising discretion and independent judgment. Certain Business and Professions Code occupations, such as real estate licensees, home inspectors, and licensed repossession agencies, also fall outside the ABC test and are evaluated under Borello.
💡 Pro Tip: If a company insists an exemption applies, ask which subsection it relies on. The burden is on the hiring entity to prove every required factor.
What Misclassification Can Cost You
Misclassification is not just a paperwork label; it strips away wages and protections you are legally owed. Workers wrongly treated as contractors may lose overtime, meal and rest break premiums, and expense reimbursement that employees receive. Because both Borello and the ABC test start from a presumption of employment, a misclassified worker often has a stronger position than they realize.
Remedies depend on your specific facts and timing. Deadlines for wage claims vary, and courts generally interpret tolling and discovery exceptions narrowly. Administrative claims filed with the Labor Commissioner are separate from civil lawsuits.
Legal outcomes turn on the details. Nothing in this article is individualized legal advice, and results depend on the full factual record. For a closer look at how these principles apply to your circumstances, connect with a borello test california lawyer who focuses on representing employees across California. You can also review the governing statutes in the California Labor Code.
Frequently Asked Questions
1. What is the Borello test in simple terms?
It is a flexible, common law control test that weighs many factors to decide employee status. The hiring entity’s right to control the manner and means of work is the hallmark of the analysis.
2. When does Borello apply instead of the ABC test?
Borello applies when a statutory exemption removes a worker from the ABC test. It also applies when a court finds the ABC test cannot be used for other reasons or when federal law preempts it.
3. Does an exemption automatically make me an independent contractor?
No. An exemption only changes which test applies, and Borello still presumes you are an employee. The hiring entity must prove the required exemption factors and satisfy the Borello analysis.
4. Is the Borello test the same as AB 5?
No. AB 5 was repealed by AB 2257, which reenacted similar rules in Labor Code sections 2775 through 2787. Borello is the older common law standard these statutes point back to in exempt situations.
5. Who has the burden of proof in a classification dispute?
The hiring entity generally carries the burden under both tests. For licensed contractor work, a rebuttable presumption of employment shifts that burden to the hiring party from the outset, and becomes unrebuttable when the worker lacks a required license.
Standing Up for Your Right to Be Classified Correctly
Understanding the borello test california framework helps you recognize when a company may have wrongly labeled you a contractor. The test asks who controls the work, weighs 11 factors, and applies when exemptions or federal law take the ABC test off the table. Because both standards presume employment and put the burden on the hiring entity, you have meaningful rights worth protecting.
If you believe you have been misclassified and denied wages you earned, MSD Lawyers is ready to review your case. Call 213-401-0823 or request a consultation today to learn how the firm advocates for California workers.
