01.
Determining if Worker Is an Employee. In making a determination as
to whether a worker is performing services in covered employment, it shall be
determined whether the worker is an employee. To determine whether a worker is
an employee, the following factors may be considered: (3-23-22)
a. The way in which the business entity
represented its relationship with the worker prior to the investigation or
litigation, including representations to the Internal Revenue Service;
(3-23-22)
b. Statements made to the
Department; (3-23-22)
c. Method of
payment to the worker, in particular whether federal, state, and FICA taxes are
withheld from paychecks; and (3-23-22)
d. Whether life, health, or other benefits
are provided to the worker at the business entity's expense.
(3-23-22)
02.
Determining if Worker Is an Independent Contractor. If it cannot
be determined that a worker is an employee pursuant to Subsection
112.01 above, then a
determination shall be made whether the worker is an "independent contractor"
pursuant to the terms of Section
72-1316(4), Idaho
Code. For the purposes of that section and these rules, an independent
contractor is a worker who meets the requirements of both Sections
72-1316(4)(a) and
(b), Idaho Code. (3-23-22)
03.
Proving Worker Is Free from Control
or Direction in His Work. To meet the requirement of Section
72-1316(4)(a),
Idaho Code, the alleged employer must prove that a worker has been and will
continue to be free from control or direction in the performance of his work,
both under his contract of service and in fact. The following factors may be
considered in this determination: (3-23-22)
a. Whether the alleged employer has control
over the details of the work, the manner, method or mode of doing the work, and
the means by which the work is to be accomplished, but without reference to
having control over the results of the work. (3-23-22)
b. The freedom from direction and control
must exist in theory (under a contract of service) and in fact; and
(3-23-22)
c. The employer must
demonstrate that it lacked a right to control the worker.
(3-23-22)
04.
Proving Worker Is Engaged in Independently Established Business.
To meet the requirement of Section
72-1316(4)(b),
Idaho Code, it must be proven that a worker is engaged in an independently
established trade, occupation, profession or business. The following factors
are significant and shall be considered in making this determination, although
no single factor is regarded as controlling: (3-23-22)
a. The level of skill required to perform the
work; (3-23-22)
i. A worker who performs
routine tasks requiring little or no training is indicative of the worker's
status as an employee. (3-23-22)
ii. A worker who performs work requiring
skills marketable as a trade, occupation, profession or business, such as an
electrician, attorney, physician, or CPA, is indicative of the worker's status
as an independent contractor. (3-23-22)
iii. A worker who performs work requiring
special licensing or compliance with regulatory requirements is indicative of
the worker's status as an independent contractor. (3-23-22)
iv. A worker who receives all or
substantially all of the worker's job training from the alleged employer is
indicative of the worker's status as an employee. (3-23-22)
b. The extent to which the worker's services
are an integral part of the alleged employer's business; (3-23-22)
i. A worker who performs the primary type of
work that the alleged employer is in business to provide to its customers or
clients is indicative of the worker's status as an employee. For example, an
automotive repair business hires an additional mechanic to help in its service
repair shop. Since the work provided by the worker is the primary type of work
the automotive repair business provides to its customers, the work is
indicative of the worker's status as an employee. (3-23-22)
ii. A worker who performs a specific job that
is secondary to an integral part of the employer's business is indicative of
the worker's status as an independent contractor. For example, if a
manufacturing business requiring routine electrical work within its
manufacturing facility hires an independent electrical company to provide that
service, the electrical work performed is indicative of the worker's status as
an independent contractor. (3-23-22)
iii. A worker who supervises the alleged
employer's employees is indicative of the worker's status as an employee.
(3-23-22)
iv. If the success of a
business depends to an appreciable degree upon the performance of certain
services, the worker performing those services is indicative of that worker's
status as an employee. (3-23-22)
v.
If a worker is not required to work solely for the alleged employer and there
is a separate contractual relationship for each job that ends upon the
completion of that job, the work is indicative of the worker's status as an
independent contractor. (3-23-22)
c. The permanency of the relationship;
(3-23-22)
i. The longer a worker works solely
for a single alleged employer, the more indicative it is of the worker's status
as an employee. (3-23-22)
ii. A
worker who makes the worker's services available to the general public for hire
on a regular and consistent basis is indicative of the worker's status as an
independent contractor. (3-23-22)
iii. A worker whose hours worked are
regularly scheduled, rather than sporadic or occasional, is indicative of the
worker's status as an employee. (3-23-22)
iv. Work with a specific ending date that
ends the working relationship between the worker and the alleged employer is
indicative of the worker's status as an independent contractor.
(3-23-22)
v. Work that is open
ended allowing the worker to continue working for the same alleged employer as
long as performance standards are met, is indicative of the worker's status as
an employee. (3-23-22)
d.
A worker's investment in facilities and equipment; (3-23-22)
i. A worker who is reimbursed for
work-related purchases, materials or supplies, or is furnished work-related
materials or supplies by the alleged employer is indicative of the worker's
status as an employee. (3-23-22)
ii. A worker who uses the tools and equipment
of the alleged employer is indicative of the worker's status as an employee.
(3-23-22)
iii. A worker's
significant investment in tools and equipment compared to the cost of the tools
and equipment provided by the alleged employer is indicative of the worker's
status as an independent contractor. (3-23-22)
iv. A worker who is financially responsible
to the alleged employer for damage to equipment or tools is indicative of the
worker's status as an independent contractor. (3-23-22)
v. A worker's investment in physical
facilities used by the worker in performing services is indicative of the
worker's status as an independent contractor. (3-23-22)
vi. A worker's lack of investment in physical
facilities indicating a dependence on the alleged employer for whom the
worker's services are performed is indicative of the worker's status as an
employee. (3-23-22)
e.
Whether a worker is customarily engaged in an outside trade, occupation,
profession, or business providing the same type of services the worker provides
for the alleged employer engaging his services; (3-23-22)
i. A worker who provides one (1) type of
service for an alleged employer, while providing the same type of service to
others for hire, is indicative of the worker's status as an independent
contractor. (3-23-22)
ii. A worker
who provides one (1) type of service for an alleged employer, while providing a
different type of service to others for hire, is indicative of the worker's
status as an employee of the alleged employer. (3-23-22)
iii. A worker who advertises independently
via yellow pages, business cards, web pages, or other types of media is
indicative of the worker's status as an independent contractor.
(3-23-22)
f. A worker's
opportunities for profit and loss; (3-23-22)
i. A worker required to carry business
related expenses such as insurance, bonding, or workers compensation coverage
is indicative of the worker's status as an independent contractor.
(3-23-22)
ii. A worker's ability to
earn a profit by performing work more efficiently or suffer a loss because of
the work performed is indicative of the worker's status as an independent
contractor. (3-23-22)
iii. A worker
who is subject to a risk of economic loss due to significant investments or a
bona fide liability for expenses is indicative of the worker's status as an
independent contractor. (3-23-22)
g. Other factors when viewed fairly in light
of all the circumstances that may or may not indicate that the worker was
engaged in an independently established trade occupation, profession, or
business. These factors may include control of the premises, right to determine
hours, or who sets the rate of pay. (3-23-22)
05.
Meeting Criteria for Covered
Employment. A worker who meets one (1), but not both, of the tests in
Subsections 112.03 and
112.04 above shall be found to
perform services in covered employment. (3-23-22)
06.
Evidence of Contractual Liability
for Termination. For purposes of making a determination under Section
72-1316(4), Idaho
Code, and this regulation, the party alleging that summary termination by
either party would result in contractual liability must present some evidence
upon which to base such allegation. Ref. Section
72-1316(4), Idaho
Code. (3-23-22)
