In Varisco v.Gateway Science and Engineering, the California Court of Appeals upheld a Los Angeles Superior Court ruling which determined that Al Varisco was in fact an “Independent Contractor”, not an employee of Gateway. Plaintiff Varisco alleged that the “at will” clause in his contract with Gateway established employee status.
From the opinion, which can be found HERE:
“Appellant Al Varisco sued respondent Gateway Science and Engineering for wrongful termination of employment and similar causes of action, all of which depended on the allegation that he had been Gateway’s employee. Gateway moved for summary judgment on the ground that Varisco was not an employee, but an independent contractor. The trial court found for Gateway, and we affirm. All the undisputed facts add up to an independent contractor relationship. A single clause in the parties’ letter agreement which allowed either party to terminate at will did not transform that relationship into an employment relationship.”
The Court of Appeals reviewed the following to before affirming Varisco’s status as an “Independent Contractor”.
Control is the principal factor in determining whether an individual worker is an employee or an independent contractor. “An independent contractor is ‘one who renders service in the course of an independent employment or occupation, following his employer’s desires only in the results of the work, and not the means whereby it is to be accomplished.’ Thus, the most significant question in the independent contractor/employee determination is “‘whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired.
Case law has identified secondary indicia of the nature of the relationship. These are:
(a) whether the one performing services is engaged in a distinct occupation or business;
(b) 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;
(c) the skill required in the particular occupation;
(d) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work;
(e) the length of time for which the services are to be performed;
(f) the method of payment, whether by the time or by the job;
(g) whether or not the work is a part of the regular business of the principal;
(h) whether or not the parties believe they are creating the relationship of employer-employee.”
Related Citations may be found in the opinion document. If you have questions related to employment law problems, feel free to contact Sylvester, Oppenheim & Linde.
Please Note: While the above information can be beneficial for the purpose of employment law, the IRS definition of Independent Contractor status remains to be a question best answered by a Certified Public Account (CPA) or Tax Law professional.