What the Heck is an Independent Contractor? Part IV: Impact on Tort Liability

By Andrew Randol - June 23, 2019 - Employment & Labor

In Part III of What the Heck is an Independent Contractor? our Columbus employment attorney reviewed case law to illustrate how courts decide whether a worker is an independent contractor or an employee under the Fair Labor Standards Act (“FLSA”). In Part IV of What the Heck is an Independent Contractor? our Columbus employment lawyer switches gears and explains the test courts use to determine if a worker is an employee or independent contractor for purposes of tort liability.

Generally speaking, an employer can be held liable for the negligent acts of an employee, if the employee is acting within the scope of his or her employment duties.

For instance, suppose an individual is employed as a delivery driver by a parcel company. While driving the delivery van, the employee is repeatedly distracted by looking down at his cell phone and crashes into another vehicle, causing a severe injury to another driver. The injured driver can sue the parcel company and hold it responsible for all damages caused by the delivery driver. This is known as the doctrine respondeat superior.

However, companies are not typically responsible for the negligence of independent contractors. This begs the question, what the heck is an independent contractor in this context?

Although there are some similarities with the FLSA employment test, courts use a fundamentally different approach in applying the two tests. Unlike the FLSA test, there is no focus on economic realities when determining whether a worker is an employee or independent contractor for tort liability.

When it comes to torts, “the chief test in determining whether one is an employee or an independent contractor is the right to control the manner or means of performing the work.”[1] This is generally known as the right to control test. In the simplest of terms, a court will consider the worker to be an employee if the company has the right to control the mode and manner of the work duties.[2]

In determining whether the company has the right to control the work, the court will consider all of the facts of the case, including the following factors: indicia as who controls the details and quality of the work; who controls the hours worked; who selects the materials, tools and personnel used; who selects the routes travelled; the length of employment; the type of business; the method of payment; and any pertinent agreements or contracts.[3]

It is important to note that employers are only held liable for negligent acts of their employees when the employee is acting within the scope of the employment relationship. For example, an employer would generally not be held liable for a car accident caused by the employee if the employee was simply driving home from their place of employment. Typically, driving from your home and to work and vice versa is not considered to be within the scope of employment.

The lesson for the employer here is twofold. First, using independent contractors for jobs that commonly result in accidents (such as drivers) can be preferable to using employees. This helps shield your company from potential liability. However, employers must be cautious to ensure that a worker is appropriately classified under both the FLSA test and the right to control test. As gleaned from previous articles, misclassifying a worker as an independent contractor is a dangerous game.

Thus, if a company cannot use independent contractors for such jobs, the second lesson is insurance. All companies should ensure adequate insurance is in place that is sufficient to cover potentially large tort claims, such as claims from injured drivers in automobile accidents.

Properly classifying workers is a complicated endeavor. Our employment lawyer in Columbus Ohio can help your business determine whether independent contractors or employees should be used in your business and ensure that your workers are appropriately classified.

Please contact our firm today to discuss how our Columbus business attorney can assist your business in making sound employment decisions.

[1] Boyland v. Giant Eagle, 2017-Ohio-7335, 96 N.E.3d 999, ¶23 (10th Dist.)

[2] Id.

[3] Id.


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