NEWS & RESOURCES

Employee or Independent Contractor: 6-10

09.04.15

This is a continuation of a prior article. An issue that arises for some of our Ohio Bureau of Workers’ Compensation Clients is where there exists a construction contract, whether the worker is an employee of a general or sub-contractor and thus covered under that employers Ohio BWC policy. One way the BWC and Industrial Commission tries to determine the classification of the worker is through twenty criteria in R.C. § 4123.01(A)(1)(c). Here are criteria 6 through 10:

6.) Does a continuing relationship exist between the person and the other contracting party that contemplates continuing or recurring work even if the work is not full time?

A worker that is hired on a job by job basis is more likely to be considered an independent contractor, while it is more likely that a worker is an employee if they work regular hours and on a consistent basis for the employer.

                    EXAMPLE:  EMPLOYEE

Bob hires Joe to help remodel a kitchen, once that job is completed Bob hires Joe again 1 month later to help with another job, and 2 weeks after that job has been completed Bob hires Joe again for another job. Although Bob and Joe’s work relationship is irregular it is frequent enough to establish a continuing relationship that would satisfy Joe being an employee.

                    EXAMPLE: INDEPENDENT CONTRACTOR

Bob hires Joe to help remodel a kitchen. Three more kitchen remodeling projects follow this project. Bob does not hire Joe again until a fourth project a year later. These facts would tend to suggest there is no continuing relationship suggestive of an employer/employee relationship.

7.) Are the person’s hours of work established by the other contracting party?

Again the court looks at who has control of the rate and means of work in this relationship. A worker with more freedom to pick their hours of work is more likely to be considered an independent contractor. A way this gets hazy is if the employer allows the worker to select their own shifts.

                     EXAMPLE: EMPLOYEE

Bob’s Home Improvement is hired to remodel a kitchen. Bob tells Joe that he needs him to work Monday, Wednesday, and Thursday 8:30- 5:00. Bob is in complete control of Joe’s hours; therefore, Joe is considered to be an employee.

                      EXAMPLE: INDEPENDENT CONTRACTOR

Bob’s Home Improvement is hired to remodel a kitchen. Bob tells Joe that he needs the dry wall to be up by Thursday of that week. Even though Bob has given Joe a deadline he does not dictate the actual hours and days that he works. Since Bob is only interested in the end result from Joe, these facts tend to suggest that Joe is an independent contractor.

8.)  Is the person to devote full time to the business of the other contracting party?

                     EXAMPLE: EMPLOYEE

Bob’s Home Improvement is hired to remodel a kitchen. Bob knows that Joe will work the times that he schedules him for. Joe is considered to be an employee because Bob knows that Joe will be at the job during the time he is told.

                      EXAMPLE: INDEPENDENT CONTRACTOR

Bob’s Home Improvement is hired to remodel a kitchen. Bob calls Joe and asks Joe to install dry wall in the kitchen. Joe agrees to installl the dry wall. Meanwhile, Joe installs drywall for Donnie’s Home Improvement company. The fact that Joe can choose whether or not to install dry wall for Bob, and that he can work for other companies concurrently, tend to suggests that Joe is an independent contractor.

9.)  Is the person required to perform the work on the premises of the other contracting party?

This question, is less useful than all the other questions in determining whether a worker is considered an employee or independent contractor. There are many employee-type jobs that are not performed in a fixed place of employment (delivery drivers, laborers who work at different work sites).

                     EXAMPLE: EMPLOYEE

Bob hires Joe to build picnic tables for him. Joe must work at Bob’s shop because it has all the equipment and materials needed to build the picnic tables. Joe would be considered an employee. Or another example would be Joe is a driver for Bob’s Taxi Service, Bob is in control of what car Joe drives, and the routes that he must stick to.

                       EXAMPLE: INDEPENDENT CONTRACTOR

Bob hires Joe to help him remodel a kitchen. Joe is to hang the lights while Bob installs the cabinets. Joe has other jobs going on at various locations throughout town, so he is in and out a lot while Bob is installing the cabinets. Joe is in complete control on when and where he works. Joe would be considered an independent contractor in this aspect.

10.) Is the person required to follow the order of work set by the other contracting party?

This shows who has the control over the worker. An employer is concerned not only with the result, but how the work is done. An general contractor is only interested in the result.

                      EXAMPLE: EMPLOYEE

Bob tells Joe that he is to mow a customer’s lawn then plant some trees along the driveway and finish with laying the mulch down in the flower beds. This establishes Joe as an employee because he is supposed to follow the order of work set out by Bob.

                      EXAMPLE: INDEPENDENT CONTRACTOR

Bob tells Joe that he had to mow a customer’s lawn, plant some trees along the driveway, and lay mulch in the flower beds, Bob does not set out a specific order he wants the work done in, he only indicates that he wants it done. Joe decides it’s best to start with planting the trees first then mowing the lawn and finishing with laying the mulch. This indicates that Joe is an independent contractor because he was able to dictate the order of work, while Bob was only interested in the result of the work.

 Author: Jake Stang

 

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