What is considered when looking at the issue of control?
The
control test addresses the payer’s authority to exercise
control over the work that will be done and the way it will be done.
Even if such control is never exercised, the fact that control exists
is strong evidence of an employer/employee relationship. A payer
might be entitled to stipulate what an independent contractor will
do or what result is to be achieved, but not how the work will be
completed.
When
examining this issue, a court, tribunal or government body will
consider matters such as the following:
- Does
the worker work mostly on his/her own or is s/he under the payer’s
direction and control regarding the time spent working and how
the work is done?
- Does
the payer set out an order or sequence for the worker to perform
assigned tasks? Or can the worker follow his/her own pattern of
work?
- Does
the worker have specified hours of work, or can s/he choose his/her
own time of work?
- Was
the worker hired for a specific task or job, and will the relationship
be over once that work is completed?
- Is
the worker free to accept or refuse other work from other payers?
- Is
the worker free to accept or refuse work from the payer?
- Is
the worker required to work at the payer’s place of business?
- Does
the worker have to do the work himself or herself? Or could the
worker hire helpers or subcontract the work to others
- Does
the worker perform tasks that are normally (or previously were)
performed by an employee?
- Does
the payer give the worker instruction and supervise, scrutinize,
or control him/her? Is the worker subject to discipline?
- Can
the payer dismiss the worker? An independent contractor normally
cannot have his/her work terminated without liability, as long
as he/she produces a result that measures up to the contract specifications.
- Are
evaluations done? If so, who does them?
Again,
no single factor is determinative, but the greater the degree of
control, the greater the likelihood that the person is an employee.
WARNING:
The contents of these FAQs are intended as general legal information
only.
If
you have a personal problem, please consult a lawyer.
May
2008 |
