Tests
There are several different tests employed across the employment universe to determine proper classification of a worker. Regardless of which test is used, there is some commonality across the board. All of the tests are facts and circumstances tests that will look at the entire situation (and apply factors or elements) to ascertain the true nature of the relationship. If an employer sends 1099s instead of W-2s to a worker, that is not indicative of the true nature of the relationship. Likewise, if a worker signs a contract that states they are an independent contractor, the contract can only be one part of the evidence considered. Using an “industry standard” as an excuse for misclassification does not work either. Weighing factors or checking for elemental compliance is what you’ll see in the below tests.
The following explanation is excerpted in parts from Samantha J. Prince, The Shoe Is About to Drop for the Platform Economy: Understanding the Current Worker Classification Landscape in Preparation for a Changed World, 52 Mem. L. Rev. 627, 663–92 (2022). 📖 You may find the full article of interest.
Control Test
Originally, back in the 1800s, the test used was for agency liability purposes (respondeat superior) – the Control Test. Several federal statutes and their corresponding administrative agencies use the control test to determine a worker’s classification for reasons other than tort liability: Age Discrimination in Employment Act (ADEA), Americans with Disabilities Act (ADA), Employee Retirement Income Security Act (ERISA), Federal Unemployment Tax Act (FUTA), Federal Insurance Contributions Act (FICA), Internal Revenue Code (IRC), National Labor Relations Act (NLRA), Occupational Safety and Health Act (OSHA), Title VII of the Civil Rights Act of 1964, and the Worker Adjustment and Retraining Notification Act (WARN). Several state statutes and courts also use the control test in various ways. In fact, many courts use it as a default when the term “employee” is not statutorily defined.
The control test holds that a worker is an employee if the hiring entity “controlled or had the right to control the manner and means” of the worker’s work. To make this determination, the totality of the circumstances is viewed while weighing a lengthy list of factors:
(a) the extent of control which, by the agreement, the employer may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or business;
(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work