Professor of Law
UC Hastings College of the Law
Greetings from San Francisco, the epicenter of the gig economy, where workers-rights advocates are celebrating Monday’s California Supreme Court decision in the Dynamex case. The ruling, which cites an article by my colleague Veena Dubal, is expected to make it harder for businesses in California to classify gig economy workers (and others) as independent contractors rather than employees. As a result, these workers are more likely to be protected by rules about minimum wage, overtime, rest breaks, and other working conditions, although there are open questions about exactly how these rules will apply to gig workers.
But what is good for workers for employment/labor law purposes may not be so good for workers for federal income tax purposes. As readers of this blog know, independent contractors can generally deduct their business expenses above-the-line and may be able to take the new Section 199A deduction equal to up to 20% of qualified business income (significantly reducing the effective tax rate). Employees, on the other hand, can do neither. Thus, the employment/labor law win for workers in the Dynamex case may come with some unexpected and unwanted tax losses for these same workers. This is especially true for workers with non-trivial amounts of unreimbursed business expenses (although the amount of a worker’s unreimbursed expenses may decline if the worker is classified as an employee because California Labor Code 2802 generally requires employers to reimburse significant business expenses of employees).
So, taking tax into account, is independent contractor status or employee status better for workers? This question involves complicated employment/labor law and tax law tradeoffs. For example, despite the tax disadvantages of employee classification mentioned above, employee status can benefit workers for employment tax and tax compliance purposes. Others (including Shuyi Oei here, Shuyi Oei and Diane Ring here, here and here, and Kathleen DeLaney Thomas here) have written extensively on worker classification/taxation topics, and at least some of them have additional articles forthcoming on these topics. I will defer to them for more details as I am not an expert (at least right now) on worker classification or its tax implications. But even I know that, when analyzing the implications of the Dynamex case, it will be important for commentators to consider the tax, not just employment/labor, consequences.
One possibility is that the Dynamex case will change California worker classification only for employment/labor purposes and not for tax purposes. After all, the language of the ruling makes it clear that the issue addressed in the case is how to classify the workers “for purposes of California wage orders” (emphasis in original). So the case does not technically have any impact on workers’ tax classifications. Thus, a worker currently classified as an independent contractor for all purposes could be reclassified under the Dynamex standard as an employee for California wage order purposes but could remain classified as an independent contractor for tax and other purposes. The applicable classification standards are different enough that, for some workers, it would be possible to have hybrid status. But I am skeptical about whether businesses will do nuanced context-by-context worker classification determinations. It is possible, particularly if workers (and scholars?) fight for hybrid worker status, but it seems more likely, at least to me, that businesses will just determine worker status based on the employment/labor standard and use that classification across the board. Of course, a worker who believes they have been misclassified for one or more purposes could try to fight the classification, but that is a tough road.
Given the Dynamex decision, will worker classifications change, and if so, for which purposes? I do not know. We will have to wait and see how businesses react to the ruling. Regardless of how businesses respond, I hope that, in analyses of the Dynamex decision and in future discussions about worker classification, commentators will be able to move beyond our legal silos, as Diane Ring recommends in a newly posted paper. This would advance a more holistic analysis that integrates labor, tax and any other relevant issues, and that approach could really help businesses and workers in our evolving economy.