Workers’ Compensation: Construction Contract: Employee or Independent Contractor: 1-5

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).

For the most part, the twenty criteria enumerated in R.C. § 4123.01(A)(1)(c) are mostly self explanatory. In order to lessen confusion we will be laying out the criteria with accompanying examples. Since there are twenty criteria, we will present five criteria at a time. Without further ado here are criteria 1 through 5:

• Is the person required to comply with instructions from the contracting party regarding the manner or method of performing services?

If the employer controls the manner or means of the work this is indicative of an employee/employer relationship is created. If a worker is only responsible for the result and not the way in which the job is done then that favors the worker being an independent contractor.

EXAMPLE: EMPLOYEE

Joe was told by Bob to use blue paint on one wall, red paint on another, to use a brush with thick bristles and shows Joe how to place tape around the site in order to prevent the paint from dripping. This would satisfy Joe being an employee of Bob.

EXAMPLE: INDEPENDENT CONTRACTOR

Bob told Joe to paint a room certain colors. Joe knew what kind of brush to use for the job from prior job experiences and knew a technique his father taught him on how to paint without making drips. This would satisfy Joe being an independent contractor.

• Is the person required by the other contracting party to have particular training?
  

Particular training for a certain employer tends to indicate an employer/employee relationship. This factor can be read along with the first factor above in regards to manner/method of performing the job. who has control of the means of work by controlling the methods that a job is done through training the employer requires.

EXAMPLE: EMPLOYEE

Joe is required by Bob to take a safety course taught by Bob himself that instructs Joe on how to properly operate and conduct maintenance on a lift that Joe will be using on a regular basis. This would satisfy Joe being an employee of Bob.

EXAMPLE: INDEPENDENT CONTRACTOR

Joe has attended classes in order to be certified to operate the lift that he uses on a regular basis for Bob. Although Joe had to attend the classes in order to operate the lift, the training was not exclusively for Bob. Joe can use this same certification to work in other warehouse. Therefore, this would tend to be a check in the IC category.

• Are the person’s services integrated into the regular functioning of the other contracting party?
  

The more a worker is integrated into the regular functioning of a business the more likely they are to be considered an employee by the court.

EXAMPLE: EMPLOYEE

Bob’s Home Improvement was hired to remodel a kitchen. This is a typical job for Bob. Part of the kitchen remodeling process involves the installation of dry wall. Joe puts up the dry wall as part of Bob’s kitchen remodeling projects. Since a typical job for Bob requires the use of dry wall, Joe is seen to be integrated into Bob’s business. This would tend to suggest Joe is an employee of Bob’s Home Improvement.

EXAMPLE: INDEPENDENT CONTRACTOR

Bob’s Home Improvement was hired to remodel a kitchen, this particular customer wants an aquarium installed under the counters. Although Bob’s typical job s include remodeling kitchens this is the first to involve an aquarium, so he hires Joe who is known for installing home aquariums. This would satisfy Joe being labelled an independent contractor because his skills are not usually needed for one of Bob’s typical jobs.

• Is the person required to perform the work personally?

This question looks again at who has control of the means of work, but with a nuance from the previous question. A worker that may be classified as an independent contractor from this question is one that delegates work responsibilities to other workers and takes on more of a supervisor role, so essentially you are not an employee because you are acting more as an employer.

EXAMPLE: EMPLOYEE

Bob tells Joe that he needs to mow a customer’s lawn, lay mulch in the flower beds, and plant a few trees along the driveway. Bob expects Joe will personally perform the work that he has asked him to do. This would satisfy Joe being an employee because it indicates that Joe is interested in the methods employed and not just the results

EXAMPLE: INDEPENDENT CONTRACTOR

Bob tells Joe that he needs to have his crew mow a customer’s lawn, lay mulch in the flower beds, and plant a few trees along the driveway. Joe supervises Tom mowing the lawn, Ben laying mulch, and Dave planting the trees. Joe’s supervising implies that he is interested in the results and not the methods used to complete the job. This satisfies Joe being labeled an independent contractor.

• Was the person hired, supervised, or paid by the other contracting party??

This question looks again at who has control of the means of work, but with a nuance from the previous question. A worker that may be classified as an independent contractor from this question is one that delegates work responsibilities to other workers and takes on more of a supervisor role, so essentially you are not an employee because you are acting more as an employer.

EXAMPLE: EMPLOYEE

Bob tells Joe that he needs to mow a customer’s lawn, lay mulch in the flower beds, and plant a few trees along the driveway. Bob expects Joe will personally perform the work that he has asked him to do. This would satisfy Joe being an employee because it indicates that Joe is interested in the methods employed and not just the results

EXAMPLE: INDEPENDENT CONTRACTOR

Bob tells Joe that he needs to have his crew mow a customer’s lawn, lay mulch in the flower beds, and plant a few trees along the driveway. Joe supervises Tom mowing the lawn, Ben laying mulch, and Dave planting the trees. Joe’s supervising implies that he is interested in the results and not the methods used to complete the job. This satisfies Joe being labeled an independent contractor.