- Recording artists, songwriters, lyricists, composers, proofers,
managers of recording artists, record producers and directors,
musical engineers, musicians engaged in creating sound recordings,
vocalists, photographers working on album covers, and other press
and publicity photos relating to recordings, and independent radio
promoters;
- Musicians or musical groups for the purpose of a
single-engagement live performance event;
- Individual performance artists;
- Licensed landscape architects;
- Freelance translators, content contributors, advisors,
narrators, cartographers, producers, copy editors, and
illustrators;
- Registered professional foresters;
- Real estate appraisers;
- Home inspectors;
- Persons who provide underwriting inspections, premium audits,
risk management or loss-control work for the insurance
industry;
- Manufactured housing salespersons;
- Persons engaged in conducting international and cultural
exchange visitor programs;
- Competition judges with specialized skill sets;
- Digital content aggregators who serve as licensing
intermediaries for digital content;
- Specialized performers hired to teach a master class for no
more than one week; and
- Feedback aggregators.
- Licensed insurance agents
- Physician and surgeon (CA licensed)
- Dentist (CA licensed)
- Podiatrist (CA licensed)
- Psychologist (CA licensed)
- Veterinarian (CA licensed)
- Lawyer (CA licensed)
- Architect (CA licensed)
- Engineer (CA licensed)
- Private investigator (CA licensed)
- Accountant (CA licensed)
- Registered securities broker-dealer or investment adviser or
their agents and representatives
- Direct sales salesperson (per Section 650 of the Unemployment
Insurance Code)
- Commercial fisherman
- Real estate licensee (CA licensed)
- Workers performing repossession services for repossession
agencies
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- Freelance Writers, Photographers, Etc.
- Previously, under AB 5 freelance writers, photographers,
photojournalists, editor, or newspaper cartoonist, who had over 35
submissions a year were subject to the ABC test.
- AB 2257 removes that submission ceiling. It also adds new
positions that qualify as a Professional Service, such as
translators, content contributors, advisors, narrators,
cartographers, producers, copy editors and illustrators, subject to
certain conditions.
- AB 2257 also adds requirements that the writer or photographer
provide services under a contract that specifies in advance the
rate of pay and intellectual property rights, and that the
contractor not replace an employee performing the same work at the
same volume. In addition, the writer or photographer must not
perform the work primarily at the hiring entity's business
location, and may not be restricted from working for other hiring
entities.
- Marketing, provided that the contracted work is original and
creative in character and the result of which depends primarily on
the invention, imagination, or talent of the employee or work that
is an essential part of or necessarily incident to any of the
contracted work
- Administrator of human resources (provided certain criteria are
met)
- Certain travel agents
- Graphic design
- Grant writer
- Fine artist
- Services provided by an enrolled agent who is licensed by the
United States Department of the Treasury
- Payment processing agent through an independent sales
organization
- Still photographer or photojournalist who does not license
content submissions to the putative employer more than 35 times per
year (does not apply to motion picture work)
- Services provided by a freelance writer, editor, or newspaper
cartoonist who does not provide content submissions to the putative
employer more than 35 times per year
- Services provided by a licensed esthetician, licensed
electrologist, licensed manicurist, licensed barber, or licensed
cosmetologist provided that the individual:
- Sets his or her own rates, processes his or her own payments,
and is paid directly by clients;
- Sets his or her own hours of work and has sole discretion to
decide the number of clients and which clients for whom he or she
will provide services;
- Has his or her own book of business and schedules his or her
own appointments; and
- Maintains his or her own business license for the services
offered to clients.
- If the individual is performing services at the location of the
hiring entity, then the individual issues a Form 1099 to the salon
or business owner from which he or she rents business space.
Additionally, all of the below factors must be
met for the exemption to apply to the above listed
"professional services":
- The individual maintains a business location (may be residence)
that is separate from hiring entity. The individual may choose to
perform services at the hiring entity's location;
- If work is performed more than six months after January 1,
2020, the individual has a business license, in addition to any
required professional licenses or permits for the individual to
practice in his or her profession;
- The individual has the ability to set or negotiate his or her
own rates for the services performed;
- Outside of project completion dates and reasonable business
hours, the individual may set the individual's own hours;
- The individual is customarily engaged in the same type of work
performed under contract with another hiring entity or holds
themselves out to other customers as available to perform the same
type of work; and
- The individual customarily and regularly exercises discretion
and independent judgment in the performance of the services.
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AB 5's "business-to-business" exemption had been
used by certain freelancers and sole proprietors operating in
California as a way to avoid the "ABC" Test.
AB 2257 clarifies the exemption's requirements and, in
theory, allows more flexibility in how it may be applied.
- A bona fide business-to-business contracting relationship, is
exempt from the "ABC" test if the contracting business
demonstrates that all of the following criteria
are satisfied:
- The business service provider is free from the control and
direction of the contracting business entity, both under the
contract for the performance of the work and in fact;
- The business service provider is providing services directly to
the contracting business rather than to customers of the
contracting business;
- The business service contract is in writing;
- If the work is performed in a jurisdiction that requires the
business service provider to have a business license or business
tax registration, the business service provider has the required
business license or business tax registration;
- The business service provider maintains a business location
that is separate from the business or work location of the
contracting business;
- The business service provider is customarily engaged in an
independently established business of the same nature as that
involved in the work performed;
- The business service provider actually contracts with other
businesses to provide the same or similar services and maintains a
clientele without restrictions from the hiring entity;
- The business service provider advertises and holds itself out
to the public as available to provide the same or similar
services;
- The business service provider provides its own tools, vehicles,
and equipment;
- The business service provider negotiates its own rates;
- The business service provider sets its own hours and location
of work; and
- The business service provider is not performing the type of
work for which a license from the Contractor's State License
Board is required.
Note: This subdivision does not apply to an individual
worker, as opposed to a business entity.
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