Employee or Employer

Question 1

Restatement Test

Answer 1

A worker is an employee if:

-The worker acts, at least in part, to serve employer’s interest;

-Employer consents to receive worker’s services; and

-Employer controls manner and means by which worker renders services or employer prevents worker from rendering those services to others

Question 2

ABC Test

Answer 2

A worker is presumed to be an employee unless the employer can show:

-Worker is free from control both in contract and in fact;

-Work is outside usual course of employer’s business; and

-Worker is customarily engaged in an independent trade.

Burden on employer

Question 3

Clackamas Test

Answer 3

Consider six factors

-Whether organization can hire/fire worker or set rules and regulations for worker’s work;

-Whether and to what extent organization supervisor’s worker’s work;

-Whether individual reports to someone higher in the organization;

-Whether and to what extent worker can influence the organization,

-Whether parties intended that worker be an employee as expressed in agreements or contracts; and

-Whether worker shares in profits, losses and liabilities of the organization.