GEORGIA AMENDS ITS INDEPENDENT CONTRACTOR TEST FOR UNEMPLOYMENT PURPOSES.

On May 2, the Georgia Legislature passed a law, effective July 1, 2022, that amends the definition of employment for unemployment insurance purposes under the Georgia Employment Security Law. Later last month, Governor Brian Kemp signed into law HB 389, which changes the definition of employment to presume that an individual is an employee if providing services for wages, unless the company can establish 



1. that the individual has been and will continue to be free from control or direction over the performance of their services, 
2. and (b) that the individual is customarily engaged in an independently established trade, occupation, profession or business. 

Under the new law, freedom from control or direction is to be determined “as demonstrated by whether the individual” 

(i) may provide services to other companies (including contemporaneously), 

(ii) is free to accept or reject engagements without consequence, 

(iii) is required to meet a minimum number of hours or orders to be obtained, 

(iv) may set his/her own schedule, 

(v) receives minimal instructions and no direct supervision, 

(vi) has no territorial or geographic restrictions, and 

(vii) is not required to perform, or behave or act in a particular manner to perform, the services at issue. 

The law provides further that a determination by the Georgia Department of Labor shall take into account the “totality of circumstances.” 

The law provides for two industry exceptions to the definition of employment: services provided by a music industry professional, and those services performed by or facilitated through a network company such as ride-share companies and delivery services, provided specific factors are satisfied for each exception.