Employee vs. Independent Contractor Analysis x Is there a great degree of skill required? x Does the Employer exercise a great degree of control over the details of the work? I.C. E’ee Factors Courts Consider: (“X” = Yes) x Is the worker engaged in an occupation or business distinct from Employer? x Is the work usually done under Employer’s supervision? x Does Employer provide the tools? ? How is the worker paid and how long has he been employed?
Principal/Employer is vicariously liable for Agent/Employee’s negligent torts if committed within the Agent’s “course and scope of employment” ( respondeat superior ).
Distinction between Detour vs. Frolic .
Scope of Employment X Did the act involved a serious crime? X Did Employer have reason to know Employee would do the act? X Did Employer furnish instrumentality (tools)? X Did act advance Employer’s interests? X Was act commonly performed by Employees? ? ? The Time place and purpose of act (factually based) X Was Employee’s act authorized by Employer? Employer NOT Liable Employer Liable Factors: For Principal to Be Liable, Agent’s Act must have occurred within the Course and Scope of Employment. (X = Yes)
First determine whether worker is employee or independent contractor.
General rule: Employer is not liable for acts of independent contractors because Employer no right to control.
Exception: hazardous activities
Independent Contractor is liable for her own torts.
Principal Liability: Review Worker P Generally Not Liable (unless strict liability) Outside CSE-P Not Liable Within CSE -P Liable “ Course and Scope of Employment” Independent Contractor Employee Factors