The loud news of February was that the Cabinet of Ministers at an extraordinary meeting on 08.02.2021 approved the draft Law “On Amendments to the Labor Code of Ukraine to define the concept of labor relations and signs of their existence.” However, in April, and the project remains a project
And while this project is being considered in the Verkhovna Rada, let’s consider the foreign experience of separating labor relations from civil law related to work on the example of the American “ABC test”, implemented by the decision California Supreme Court in Dynamex Operations West, Inc. v. Superior Court (2018).
The US court has established only 3 criteria (!), Which together identify a person as a contractor, not an employee:
- The person is free from the control of the customer during the performance of work / provision of services.
- The contractor’s work does not coincide with the customer’s day-to-day activities.
- It should be proved that the independent contractor conducts its separate business.
Only if all 3 criteria are proved, the person is not considered an employee.
What to do if these criteria do not clarify the situation?
In addition to the “ABC test” in the United States used Borello Test, which has an auxiliary nature. This test was developed in the case of S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989). There are already three times more criteria in this test.
We hope that in the near future ADEQUATE criteria will also apply in Ukraine for a clear distinction between labor relations and civil law related to work..