Is a court Reporter an Independent Contractor or an Employee

November 15th, 2018

Many deposition court reporters are attracted to the profession because, while it can be intense, busy, and stressful, they have more control over their schedule than a typical 9-to-5 job allows. A vast percentage of deposition reporters are independent contractors, meaning they don't have the obligations or the benefits of an employee/employer relationship with court reporting firms.

Since court reporters value flexibility, and court reporting firms don't want the burden of fixed overhead in a cyclical business, it's been a win-win situation. Independent contractor court reporters provide their own equipment, aren't required to accept all deposition assignments a firm sends their way, are responsible for paying their own taxes (though they get to write off mileage, equipment, professional dues, supplies, et cetera), but are only paid for depositions they take. This is a classic example of an independent contractor arrangement.

Fallout from the California Supreme Court's ruling this year in Dynamex is changing things for that state's independent contractors, however, and unsuspecting court reporting firms could be hit in the wallet if their contracts and behavior don't line up with the new law. The ruling in the case was meant to discourage companies who expected employee-type behaviors from independent contractors (drivers, in this case) while not guaranteeing them a set number of hours or providing them with benefits.

The Dynamex ruling set out an ABC test to determine if a worker is an independent contractor or an employee:

A - The worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact;

B - The worker performs work that is outside the usual course of the hiring entity’s business; and

C - The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.

With that definition, court reporting firms will have to ensure that they don't exert any type of employer-type control over court reporters (both in contract language and in practice), that they don't have court reporter employees on staff, and that reporters are free to provide deposition services to other clients to make sure they don't run afoul of this new law.