Georgia business often tell their employees that they are independent contractors to get around overtime issues and to avoid dealing with workers compensation.Are you an independent contractor just because your boss pays you with a 1099 and does not hold out taxes. What about the fact that you signed a independent contractor agreement?
A good example of an independent contractor is a hair stylist who rents a chair at a salon. They make their own hours and get their own customers. They are not controlled by the salon owner.
A contractor becomes an employee in the eyes of the law when the business runs the worker’s functions. The legal test is usually phrased like this: “does the employer have the right to control the time, the manner, the methods, and the means of execution of the work to be completed under the contract?”
Key facts in the analysis:
a) owner sets the schedule
b) tells contractor what to wear
c) establishes rules of conduct that go beyond societal norms
d) requires hours of work that would otherwise be overtime
e) length of the employment.
f) worker is not a specialist and does the basic work of the business.
Georgia has adopted the Restatement Agency Second, Section 220(2) checklist:
1. Degree of control which the employer has over the details of the work;
2. Does worker toil in a distinct occupation or business or general business like janitorial;
3. Is work done under supervision of the employer;
4. The expertise required by the work, the dumber the work, the less likely they are IC;
5. Does the boss supply the tools or workplace;
6. duration of relationshipt;
7. How paid?;
8. Is the work, the core business of the business;
9. The intent of the parties (this is where the contract is important);
Each case is different and an example of the analysis can be found in the case of Berry v. Great American Dream, Inc., a recent trial court decision by Judge Thrash in Atlanta. The issue was whether a stripper is an employee entitled to protection for being fired for pregnancy or whether she was an IC.
All adult entertainment clubs tell the dancers that they are contractors.The clubs pay the dancers nothing and argue that therefore they cannot be employees.
Judge Thrash used the legal principals and looked at the degree of control and ruled differently. He considered the strict scheduling, uniform, fines for rule deviation, fees to be paid for dancing and concluded the dancers were employees entitled to protection.
This same analysis will be applied if a worker is hurt on the job in Georgia and needs medical care. If you boss has told you that you are a contractor and not entitled to workers compensation, contact the firm for a free consultation.
Are landscapers employees or independent contractors?
They are often employees.
What about painters and other tradesmen? We would look to the factors outlined above and the same is true for an analysis of whether overtime pay is required, although there are some additional Federal exclusions that come into play.