Danny Noonan – IC or Employee?
In recent months and years, several states have begun to examine the classification of Independent Contractors given the rise of the gig economy via platforms like Uber, Lyft, and Grubhub. California and Massachusetts lawmakers have passed the nation’s most controversial “ABC” misclassification laws to sweep as many independent contractors into employee status as possible. Those states are not alone – before COVID-19, several other states were moving in the same direction to include PA, NY, NJ, IL, and OR, to name just a few.
By now, most golf courses in CA recognize that AB-5 is the dreaded state statute that codified the “ABC test” across California and not the name of a new 2020 Taylormade Driver. But is this so-called misclassification movement so sweeping in nature that it would snare the caddies from our favorite golf movie of all time – CaddyShack?
In the movie, on and off the golf course, Danny Noonan engages in a series of battles and adventures. His role is as a caddie at Bushwood Country Club – a high-end country club, set in the Midwest in the 1970s with a mandatory caddie program made up of mostly young caddies – some looking for a college scholarship.
The main factors used when determining the employment status of a caddie center around two main tests – Borello and ABC. ‘Borello‘ is the more simple test to pass IC status, and the law of the land, today, in about 45 States. Borello leads to a weighting of multiple factors when determining IC vs. employee status. ‘ABC‘ is the harder of the two tests and focuses on three main criteria – each required to maintain IC status:
- The worker is free from the control and direction of the hirer concerning work performance
- The worker performs work that is outside the usual course of the hiring entity’s business; and
- The worker is customarily engaged in an independently established trade, occupation, or business.
Below we share the likely views on Danny’s Employment Status based on the Borello, and ABC Tests, using evidence from the movie.
Waiting for Loops – in a CaddyShack
Borello – the existence of a Caddyshack and “caddie mandatory” policy – a strike in favor of EE status
ABC – appears to violate A and B tests given caddies have to wait on property and caddie program does seem to be mandatory for the club’s members
Borello – as evidenced by the bright orange shirts and hats with BUSHWOOD logo, not good
ABC – likely to violate A test as caddies look to be ‘controlled’ by the club as logo’d staff
Assigned Loops vs. free choice
Borello – seems they are not told who to work for but instead offered jobs and grab them of their own “free will”
ABC – freedom of choice is a good thing for caddies
Borello – Granting caddies benefits at the club like scholarships and Caddy Day at the pool would lead to employment status
ABC – violates B test again showing caddies as part of the club/staff experience
Disciplined by Caddie Manager
Borello – makes it look like employees are told how to do their jobs – not contractors
ABC – violates prong A of the test again – “free from control”
Paid by the Club
Borello – caddie manager handing out cash in exchange for caddie ticket is not a good sign
ABC – would likely violate A test again given the course has a manager of caddies who, among other things, pays the caddies.
After reviewing the evidence, it would appear that using the Borello test that there are some arguments for Judge Smails to make in favor of keeping Danny and his caddie colleagues as IC’s. However, when applying the ABC test, as we must do in several states today, the caddies fail several of the test criteria and fail the test.
CaddieNow has solutions for clubs to consider to help alleviate the risks and liability associated with both the Borello and “ABC” tests – both IC and Employee programs. Connect with us to start a conversation and hear how clubs, just like yours, protect their caddie programs.
The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available are for general informational purposes only.