SpinDiva said:
Hi all - thanks for your help...
I am a California fitness instructor - Club coordinator, for a large health club chain.
We are being changed from club employees, taxes etc. withdrawn from our paychecks -- to independent contractors / 1099 status.
So many questions -
How does this change our individual liability should a member be injured while attending one of our classes
Are we covered in any way - should any of us be injured while instructing
Have we just been put into a negative or legal / liability problem?
Thanks for your insight -
Andrea
[email protected]
My response:
As a general rule, one who hires an "independent contractor" is not liable for the acts of the independent contractor. This principle rests on "the want of control and authority of the employer over the work, and the consequent apparent harshness of the rule which would hold one responsible for the manner of conducting an enterprise of which he wants the authority to direct the operations." [Van Arsdale v. Hollinger (1968) 68 Cal.2d 245, 250, 66 Cal.Rptr. 20, 23; see also McDonald v. Shell Oil Co. (1955) 44 Cal.2d 785, 788-790, 285 P.2d 902, 904]
The factors to be considered to be an independent contractor include:
-- the hiring party's right to control the manner and means by which the product is accomplished (the most important factor);
-- the skill required;
-- the source of the instrumentalities and tools;
-- the location of the work;
-- the duration of the relationship between the parties;
-- whether the hiring party has the right to assign additional projects to the hired party;
-- the extent of the hired party's discretion over when and how long to work;
-- the method of payment;
-- the hired party's role in hiring and paying assistants;
-- whether the work is part of the regular business of the hiring party;
-- whether the hiring party is in business;
-- the provision of employee benefits; and
-- the tax treatment of the hired party. [Community for Creative Non-Violence v. Reid (1989) 490 U.S. 730, 740-741, 109 S.Ct. 2166, 2178]
Weighing required:
"(A)ll of the incidents of the relationship must be assessed and weighed with no one factor being decisive." [Nationwide Mut. Ins. Co. v. Darden (1992) 503 U.S. 318, 323, 112 S.Ct. 1344, 1349]
Economic realities test:
Other courts focus on whether the "independent contractor" is someone who, as a matter of economic reality, is dependent upon the business to which he or she renders service. Under this test, important factors are how the work relationship may be terminated and whether the worker receives yearly leave. [Lilley v. BTM Corp. (6th Cir. 1992) 958 F.2d 746, 750; S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 256 Cal.Rptr. 543]
Hybrid tests:
Still other courts consider the "economic realities" of the work relationship as an important factor in the calculus, but still focus primarily on the employer's control over the worker's performance. [Schwieger v. Farm Bureau Ins. Co. of Nebraska (8th Cir. 2000) 207 F.3d 480, 484; Oestman v. National Farmers Union Ins. Co. (10th Cir. 1992) 958 F.2d 303, 305; Mangram v. General Motors Corp. (4th Cir. 1997) 108 F.3d 61, 62]
You really need to discuss the specifics of your situation with an employment law attorney.
IAAL
