The “Right to Control” Test for Contracted Labor 

Q. We need someone to work as an assistant between five and eight hours each week. Can we hire someone as an independent contractor, or does the person have to be classified as an employee?

A. In Idaho, a worker’s status as an independent contractor or employee is determined by “the right to control” test. The test analyzes four main factors to determine whether a worker is subject to the direction and control of an employer. Simply identifying one as an “employee” or “independent contractor” will not definitively resolve how a worker is classified. Unless you are contracting with an outside entity to complete services that are not typically performed by your employees, you will likely need to consider the assistant to be an employee.

In most cases, a person who works for only one employer, according to a set schedule, and whose performance is directly supervised, will be classified as an employee. An independent contractor is generally a person providing goods or services to an entity under specific terms in a contract where schedule control, hours worked, job acceptance, job performance and job completion is controlled by the contractor. In unclear cases, specific facts related to the control over the worker’s position will be closely reviewed. Primarily, direct evidence of a right to control an employee can be shown if an employer requires compliance with instructions or demands services to be performed in a specific order or sequence, requires regular reports, pays business expenses, trains through meetings or classes, sets the hours of work or handles the hiring and firing of the workers. An independent contractor would instead have the right to perform work for more than one firm at a time, make services available to the general public on a regular basis and is chosen on a competitive basis to reduce a principal’s costs. Other factors that may be analyzed include the method of payment for the performance of work, where the work is performed, who furnishes the equipment for the work and whether either party has the right to end the relationship without contractual liability. If doubts about the worker’s classification still exist after analyzing these factors, the Idaho Supreme Court has repeatedly resolved close cases in favor of finding the worker to be an employee. Should you assert any control over the assistant’s position, it is recommended that you treat the situation as a typical employee-employer relationship.

Jason R. Mau is an attorney in the Boise office of Parsons Behle & Latimer. He can be reached at 208-562-4898 or