Control Over the Method and Manner of Performance of Work (Part 1 of 2)

Under Minnesota law, the most important factor in determining whether an individual is an independent contractor or an employee is the degree of control which the purported employer exerts over the manner and method of performing the work contracted.  The more control there is, the more likely the person is an employee and not an independent contractor.  The total circumstances, including the practices and the customs of the industry, must be considered to determine if control is present.

Criteria that courts may consider when determining whether the purported employer exerts control over the method and manner of performance include the following:

  • Authority Over the Individual’s Assistants:  Control is indicated if the purported employer hires and pays the individual’s assistants and supervises the details of the assistants’ work.
  • Compliance with Instructions:  Control is indicated when an individual is required to comply with detailed instructions about when, where, and how he or she must work, including the order or sequence in which the service is to be performed.  Mere suggestions as to detail, or necessary and usual cooperation where the work furnished is part of a larger undertaking, does not normally show control.
  • Oral or Written Reports:  Control is indicated if regular oral or written reports relating to the method in which the services are performed must be submitted to the purported employer. Periodic reports relating to the accomplishment of a specific result may not be indicative of control if, for example, they relate to completion of a job, or they are needed to determine compliance with a contract.
  • Place of Work:  Control is indicated if work which could be done elsewhere is done on the premises of the purported employer.  When work is done off the premises, freedom from control is indicated except in occupations where the services are necessarily performed away from the premises of the purported employer.
  • Personal Performance:  Control is indicated if the services must be personally rendered to the purported employer.  Lack of control is indicated if the individual has a right to hire a substitute without the purported employer’s knowledge or consent.  This factor is less reliable when personal performance is required for very specialized work, when the work is hired based on professional reputation, or when the individual is a consultant known to be an authority in a particular field.
  • Existence of a Continuing Relationship:  The existence of a continuing relationship between an individual and the person for whom he or she performs services indicates the existence of an employment relationship.  Continuing services may include work performed at frequently recurring, though somewhat irregular intervals, either on call of the purported employer or whenever work is available.

See Minn. R. § 5224.0330.

About Michael Miller

Michael is a Chambers-rated attorney in Briggs and Morgan's Employment, Benefits, and Labor group and is head of the firm’s Employment Law Counseling and Compliance practice group. He has 25 years experience counseling employers to prevent unwanted litigation and advises companies of ongoing changes in federal, state and local employment law. Michael advises employers in all areas of employment law including discipline and discharge, leaves of absence, wage and hour compliance, non-compete and confidentiality agreements, affirmative action plans, background checking, and drug/alcohol testing. For Michael's full bio, click here.

Posted on January 13, 2012, in Independent Contractors and tagged . Bookmark the permalink. Leave a comment.

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