Robin's Ruminations

There continues to be a great deal of discussion regarding the differences between an independent contractor (IC) and an employee.  This discussion is healthy and I hope most process servers are paying attention to it.  I've discussed parts of this topic before but this time I'm going to examine the six part test used by L&I to determine whether a person is an employee or an IC.  Just keep in mind that I'm a lay person and not an attorney who is expert in this area of law.  Click here if you want to see L&I's pamphlet on this topic for yourself.  You'll find all six questions on page five but let's start here with supervision.

1.  Supervision: Do they perform the work free of your direction and control?

On page four of the pamphlet L&I provides some additional information on this topic.  

You ARE NOT supervising if you are only scheduling and inspecting the work.  

You ARE supervising if you are telling your worker or a subcontractor’s workers how to do the job, assigning tasks, training, keeping time sheets, paying a wage or setting regular hours.

In order for a process server to be an IC it appears the contractee (the boss) must have very little control over the work the IC is to perform.  The contractee can tell the IC when and where the work is to be done and can inspect the work for quality.  

However, in order to avoid turning an IC into an employee the contractee must not instruct the IC on how to perform the work, cannot assign specific tasks, cannot provide any training, can't do the IC's bookkeeping, must pay according to a contract, and cannot set the IC's hours of operation.

So how does supervision impact the use of process servers?  Now I'm more familiar with using employees so if you think any of my ideas regarding the use of IC's are wrong please post a comment with your thoughts on the matter.

Scheduling - It seems to me the contractee can tell the IC about the work the IC is expected to perform and to set certain parameters, such as a specific time frame, so long as those parameters were set by the contractee's client..  For instance, it seems reasonable the contractee could say the first attempt is to take place within four days so long as this was an expectation of the contractee's client.  Scheduling involves more than time, it also includes locations.  Therefore the contractee could specify service attempts are to be made at specific locations where it is expected the target will be found so long as the locations came from the client.

Inspecting - The contractee can inspect the end product or the IC's progress at any point after the job is assigned.  It can approve of the IC's work or find it unacceptable in meeting the terms of the agreement (written or unwritten) between the contractee and IC.  

Those are the things the contractee can do and maintain the IC as a contractor instead of an employee.  But what about the things the contractor can't do?

Tell the IC how to do the job - I take this to mean the IC must be familiar with the rules of service and the nuts and bolts of how to accomplish service.  The former would include knowledge of RCW's, court rules, and case law.  The latter would include techniques for getting people to answer the door, which brand of computer to buy, which software to use, which type of car to buy, or information on maps, GPS's, etc.  These are tools of the trade and the IC would be expected to know about them or, at least, how to find out about them.

Assigning tasks - This deals with the means and methods of doing the work.  An IC needs to supply the means and control.  When the contractee steps in then the IC becomes an employee.

Training - IC's need to know how to do the job or they need to learn how to do it on their own.  It seems reasonable to me that the contractee should not be teaching the IC.  

Keeping time sheets - It is the IC's responsibility to monitor his own time.  If the contractee becomes involved in this it seems apparent to me the IC is no longer an IC but has become an employee.

Paying a wage - This implies regular remuneration based on a salary, an amount per hour, or an amount for each piece of work completed.  Taxes are withheld and paid by the contractee.  Seems obvious to me this will quickly convert an IC into an employee.

Setting regular hours - Once again it is fairly obvious that an IC would set his own hours and any move to set them on the part of the contractee would move the IC towards being an employee.  That said, if the IC didn't work the hours necessary to accomplish the job then the contractee would have every right to stop using that IC and find one that is ready, willing, and able to work the needed hours.

I'll take up the Separate Business question in my next post.