The Nebraska Court of Appeals has again answered the age old question of whether a worker is an employee or an independent contractor. In Wight v H&S Contracting the court found that an individual who held himself out as a single employee operation was an independent contractor.
In this case, Navarro Robles fell off of a roof while working on a job site. His widow claimed that he was an employee of the contractor on the project and he was entitled to workers compensation benefits.
The Workers Compensation Court and the Court of Appeals disagreed. The court identified the following important facts:
- Robles held himself out as an independent contractor, Navarro Roofing;
- the company had its own checking account and filed taxes under the business name;
- Robles provided his own tools on the job site, even though the contractor provided the basic materials to do the actual work;
- Robles was paid per job, not by the hour; and
- the contractor had offered Robles a job, but he had refused, saying he wanted his winters off.
The court applied this background to the ten factors that must be assessed in determining whether a worker is an employee or as an independent contractor. These factors are:
- the extent of control which, by the agreement, the employer may exercise over the details of the work;
- whether the one employed is engaged in a distinct occupation or business;
- 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;
- the skill required in the particular occupation;
- whether the employer or the one employed supplies the instrumentalities, tools, and the place of work for the person doing the work;
- the length of time for which the one employed is engaged;
- the method of payment, whether by the time or by the job;
- whether the work is part of the regular business of the employer;
- whether the parties believe they are creating an agency relationship; and
- whether the employer is or is not in business.
Applying these factors, the court found that Robles was an independent contractor, not an employee. This was the finding even though Robles was a the sole owner and employee of Navarro Roofing and he had refused to buy workers compensation insurance.
This case drives home the point that an individual holding himself out as an independent contractor may truly be an independent contractor. But, there are a lot of factors to consider when making this assessment. That is why we recommend you contact experienced counsel to help you assess the situation.