Independent Contractor vs. Employee Flashcards
What is the definition of an independent contractor?
Independent contractor means any person who renders service for a specified recompense for a specified result, under the control of his principal as to the result of his work only and not as to the means by which such result is accomplished.
What is the essence of an independent contractor v. employee test?
The essence of the test is the ‘control of details’ – that is, whether the principal has the right to control the manner and means by which the worker accomplishes the work - but there are a number of additional factors in the modern equation. (Essence of test is who has the control over the manner and means of accomplishing result.)
What type of test is the independent contractor vs. employee test?
Totality of the circumstances test.
What type of test is the independent contractor vs. employee test?
Totality of the circumstances test.
The court in Borello observed that such ‘individual factors’ were not to be ‘applied mechanically as separate tests,’ but were ‘intertwined’ and often given weight depending on the particular combination of factors
What is a question of law and what is a question of fact for the independent contractor vs employee test?
The existence and degree of each factor of the common law test for employment is a question of fact, while the legal conclusion to be drawn from those facts is a question of law.
Is the determination (EE or IC( one of fact or law? If it is affirmed what must it be supported by?
The determination (employee or independent contractor) is one of fact and thus must be affirmed if supported by substantial evidence.
What is the standard of review for IC v. EE cases?
Substantial evidence to support the finding.
How to tell between IC & EE?
Primary factor + Borello Factors + at will employment
What is the primary factor in an IC & EE
Who has the control of the manner and means of accomplishing the result
What if the parties have labeled their relationship? Will it control?
The parties’ liable is not dispositive and will be ignored if their actual conduct establishes a different relationship.
What are the factors to determine if an individual is an independent contractor or an employee?
- Whether the worker’s engaged in a distinct occupation or business,
- Whether considering the kind of occupation and locality, the work is usually done under the principal’s direction or by a specialist without supervision,
- The skill required,
- Whether the principal or worker supplies the instrumentalities, tools, and place of work,
- The length of time for which the services are to be performed,
- The method of payment, whether by time or by job
- Whether the work is part of the principal’s regular business, and
- Whether the parties believe they are creating an employer-employee relationship.
What is the 9th factor for determining if a person is an IC or EE.
Whether the individual can be fired at will.
