Q.Who is an employee? Employee or Independent Contractor?
A.An employer-employee relationship exists when a person or entity hires an individual and has the right to exercise control over the manner and means by which the individual performs his or her services. The right of control, whether or not exercised, is the most important factor in determining the relationship. The right to fire a worker at will and without cause is strong evidence of the right of to control. Nevertheless, the following factors should also be taken into consideration, and if answered affirmatively would support a finding of an independent contractor relationship:
- if the alleged independent contractor is engaged in a separately established occupation or business (has a fictitious business name and/or a business license);
- if the occupation or business engaged in by the alleged independent contractor is such that the work typically done can be accomplished without supervision;
- if a high skill set is required of the alleged independent contractor to perform the services and accomplish the desired result;
- if the alleged independent contractor supplies his or her own tools and equipment;
- if the alleged independent contractor has the discretion to make business decisions that would enable him or her to earn a profit or incur a financial loss;
- if the length of time for which the alleged independent contractor will need to perform the services is short, as opposed to continuous in nature;
- if the alleged independent contractor is paid for the job based on his own time estimate (as opposed to hourly or at a piece rate);
- if the actual extent of control exercised by the business owner over the manner and means by which the alleged independent contractor performs the services is minimal; and most importantly
- if the work performed is for the personal benefit of the alleged employer as an individual, as opposed to being a part of the business owner’s regular business.
A written contract that purports to establish an independent contractor status is not controlling if the practice of the parties shows that the business owner retains the right of control. The modern tendency is to find an employer-employee relationship when the work being performed is an integral part of the regular business of the employer and the worker does not furnish an independent business or professional service relative to the employer.
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