Agency

Question 1

Agency

                            Independent Contractor or Employee

Answer 1

The test of whether a person is an employee is whether the person’s “physical conduct in the performance of the services is subject to the [employer’s] control or right to control.” Restatement (Second) Agency § 220(1); see also Restatement (Third) agency § 7.07(3)(a) (“[A]n employee is an agent whose principal controls or has the right to control the manner and means of the agent’s performance of work.”). This is generally a question of fact. Restatement (Second) Agency § 220 cmt. c. A number of factors are relevant, including the level of skill required to perform the work, who supplies the instrumentalities used, the duration of the relationship, and whether the work is part of the principal’s regular business. No single factor is determinative. See Restatement (Second) Agency § 220; Restatement (Third) Agency § 7.07 cmt. f.