Independent Contractor v. (At-Will) Employee

The main distinction between an employee or at-will employee and an independent contractor is that the independent contractor is responsible to the principal solely for the result of the work that is the subject of the contract between the parties. Independent contractor is responsible to principal only for result and not manner or means by which it is accomplished. Generally, whether a worker is an employee or independent contractor is a question of fact that depends on the trier of fact’s evaluation of several factors, most notably whether the employer has the right to control not only the result but also the means by which the work is accomplished. Ali v. L.A. Focus Publication 112 Cal.App.4th 1477 (2003).

Labor Code section 2750.5 sets forth a number of factors that may prove that such an individual is working as an independent contractor, Among these factors are: (1) the individual worker has the right to control and discretion as to the manner of performance of the service contract in that the result of the work and not the means by which it is accomplished is the primary factor bargained for; (2) the workers is customarily engaged in an independently established business; (3) the worker’s independent contractor’s status is bona fide and not a subterfuge to avoid employee status; and (4) if the worker was performing work for which a contractor’s license is required, he or she should have held such a license.

No matter what the status of the worker is, employers often wish to include “at will” language in service contracts. However, such language should be removed from a contract with an independent contractor, as language describing a relationship as “at-will” generally goes to show that an employment relationship was created because an employer can end a working relationship at any time and for any or no reason.

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