San Francisco Employment Law Firm Blog
The main test of an employment relationship is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired. S.G. Borello & Sons, Inc. v Dept. of Industrial Relations (1989). The process of distinguishing employees from independent contractors is fact specific. The right to control retains significance, but is no longer determinative. State Compensation Ins. Fund v Brown (1995). While the right to control work details is the most important consideration, the authorities also endorse several “secondary” factors of the employment relationship. The courts also noted that the “control” test, applied rigidly and in isolation is often of little use in evaluating the large variety of service and employment arrangements that can potentially exist.
The secondary factors usually considered by courts are (1) whether there is a right to fire at will without case; (2) whether the one performing services is engaged in a distinct occupation or business; (3) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (4) the skill required in the particular occupation; (5) whether the principal or the worker supplies the instrumentalities, tools, and and the place of work for the person doing the work; (6) the length of time for which the services are to be performed; (7) the method of payment, whether by the time or by the job; (8) whether or not the work is a party of the regular business of the principal; (9) whether the parties believe they are creating an employer-employee relationship; (10) whether the classification of independent contractor is bona fide and not an obvious attempt by the employer to avoid employee status; (11) the hiree’s degree of investment other than personal service in his or her own business and whether the hiree holds himself out to be in business with an independent busienss license; (12) whether the hiree has managerial skill; and (14) whether the service rendered is an integral part of the alleged employer’s business. Sotelo v Medianews Group, Inc. (2012).
The label placed by the parties on their relationship is not dispositive, and subterfuges are not countenanced. Antelope Valley Press v Poizner (2008). Thus, signing an independent contractor agreement is not dispositive and is often of little significance to determining whether a worker is an employee or independent contractor.