50 State Tax Survey: L — N

LOUISIANA
LAW

Louisiana Revised Statutes

Title 23 - Labor and Worker's Compensation

Chapter 11 - Unemployment Compensation

Section 1472 - Definitions

(12)A. "Employment" means, subject to the other provisions of this subsection, any services including service in interstate commerce, performed for wages or under any contract of hire, written or oral, express or implied;

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E. Services performed by an individual for wages or under any contract of hire, written or oral, express or implied, shall be deemed to be employment subject to this Chapter unless and until it is shown to the satisfaction of the administrator that;

I. such individual has been and will continue to be free from any control or direction over the performance of such services both under his contract and in fact; and

II. such service is either outside the usual course of the business for which such service is performed, or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and

II. such individual is customarily engaged in an independently established trade, occupation, profession or business;

ADMINISTRATIVE PUBLICATION

MAINE
LAW

Maine Revised Statutes

Title 26: Labor and Industry

Chapter 13: Unemployment Compensation

Section 1043 - Definitions

11. Employment. "Employment," except as otherwise provided in paragraph F, subparagraph (2), means any service performed prior to July 26, 1940 which was employment as defined in this subsection prior to such date, and subject to the other provisions of this subsection service performed after July 26, 1940, including service in interstate commerce, performed for wages or under any contract of hire, written or oral, expressed or implied.

11.  Employment.

A. The term "employment" shall include an individual's entire service, performed within or both within and without this State if:  E. Services performed by an individual for remuneration shall be deemed to be employment subject to this chapter unless and until it is shown to the satisfaction of the bureau that: (1) Such individual has been and will continue to be free from control or direction over the performance of such services, both under his contract of service and in fact; (2) Such service is either outside the usual course of the business for which such service is performed, or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and

(3) Such individual is customarily engaged in an independently established trade, occupation, profession or business.

MARYLAND
LAW

Maryland Labor Code   § 8-101 - Labor and Employment (l)              "Covered employment" means work that an individual performs for an employing unit that is the basis for benefits. § 8-206(d):

  REGULATIONS Code of Maryland Regulations, Sec. 09.32.01.18 .18 Presumption of Employee. A.   Employee. A person performing services is presumed to be an employee, regardless of whether a common law master and servant relationship exists, unless specifically Exempted under the Unemployment Insurance Law or these regulations. B. Independent Contractor. (1) To overcome the employee presumption, an employing unit shall establish that the person performing services is an independent contractor. (2) The Secretary shall determine that an employing unit has established that the person performing services is an independent contractor when the conditions in §B(3)(a) —— (c) of this regulation are clearly shown. (3) Circumstances evidencing the conditions mentioned in §B(2) of this regulation include, but are not limited to, the items listed after each condition: (a) The person has been and will continue to be free from the employing unit's control or direction: (i) The employing unit does not require the person to comply with detailed instructions about when, where, and how the person is to work, (ii) The employing unit does not train the person to perform the service in a particular manner or using a particular method determined by the employing unit, (iii) The employing unit does not establish set hours of work for the person performing the services, (iv) The employing unit does not establish a schedule or routine for the person performing the service, (v) The employing unit may not discharge the person for failure to obey the employing unit's specific instructions on how the service is to be performed; (b) The service is outside the usual course of business of the employing unit: (i) The person performs the work off the employing unit's premises, (ii) The person performs work that is not integrated into the employing unit's operation, (iii) The service performed is unrelated to the employing unit's business; (c) The person performing the service is customarily engaged in an independently established business: (i) Maintains a business listing in the telephone directory, (ii) Has his or her own place of business, (iii) Has a financial investment in a related business and can incur a loss in the performance of the service, (iv) Has his or her own equipment needed to perform the service, (v) Determines the price of the service to be performed, (vi) Employs others to perform the service, (vii) Carries his or her own liability or workers' compensation insurance, or both, (viii) Performs the service for more than one unrelated employer at the same time, (ix) Sets his or her own hours,

(x) Is paid by the job.

Code of Maryland Regulations, Sec. 09.32.01.18-1 .18-1 Specific Exemptions from Covered Employment. A. Messenger Service Drivers. Work that a messenger service driver performs for a person who is engaged in the messenger service business is not covered employment if the Secretary is satisfied that certain statutory conditions are met.

B. Definitions. "Messenger service business" means a business primarily engaged in the hand delivery of individually addressed mail, messages, or documents, either in paper or magnetic media format, to the public or to industrial or commercial establishments, generally involving outside travel on foot, by bicycle, or by motor vehicle.

MASSACHUSETTS LAW

 Massachusetts General Laws   Chapter 151A - Employment and Training Section 2. Service performed by an individual, except in such cases as the context of this chapter otherwise requires, shall be deemed to be employment subject to this chapter irrespective of whether the common-law relationship of master and servant exists, unless and until it is shown to the satisfaction of the commissioner that—   (a)   such individual has been and will continue to be free from control and direction in connection with the performance of such services, both under his contract for the performance of service and in fact; and   (b) such service is performed either outside the usual course of the business for which the service is performed or is performed outside of all the places of business of the enterprise for which the service is performed; and   (c) such individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed. COURT DECISIONS Althol Daily News v. Bd. of Review, et al., 786 N.E. 2d 365 (Mass. 2003); Using ABC test adult newspaper deliveryman was not an employee of the paper. Workers could (and some did) deliver for other publishers. The court distinguished Boston Bicycle Couriers.

Boston Bicycle Couriers, Inc. v. Div. of Empl. And Training, 778 N.E. 2d 964 (Mass. App. 2002).  Bicycle courier is an employee because he did not engage in an independent business.  He had no business apart from the courier company.

MICHIGAN 
LAW   Michigan Compiled Laws   § 421.42 "Employment" defined. (1) "Employment" means service, including service in interstate commerce, performed for remuneration or under any contract of hire, written or oral, express or implied. . . . . *   *   *   *   *   * (5) Services performed by an individual for remuneration shall not be deemed to be employment subject to this act, unless the individual is under the employer's control or direction as to the performance of the services both under a contract for hire and in fact. Service performed by an individual for remuneration under an exclusive contract which provides for the individual's control and direction by a person, firm, or corporation possessing a public service permit or by a certificated motor carrier transporting goods or property for hire shall be deemed employment subject to this act. Service performed by an individual who by lease, contract, or arrangement places at the disposal of a person, firm, or corporation a piece of motor vehicle equipment and under a contract of hire, which provides for the individual's control and direction, is engaged by the person, firm, or corporation to operate the motor vehicle equipment shall be deemed to be employment subject to this act. COURT DECISION

Acme Messenger Service Co. v. Mich. Unempl. Comp. Comm'n, 11 N.W. 2d 296 (Mich. 1943).  Truck divers and messengers were employees (under the ABC test), even though they provided their own vehicles.  Most worked full-time and regularly waited on the premises for jobs, and had no independently established business.

MINNESOTA
LAW  Minnesota Statutes  Section 268-035 - Definitions
*   *   *   *   * Subd. 13.  Employee. "Employee" means every individual, who is performing, or has performed services for an employer in employment.

*   *   *   *   * Subd. 15. Employment. "Employment" means service performed by: (1) an individual who is considered an employee under the common law of employer-employee and not considered an independent contractor;  

REGULATIONS

Minnesota Rules, part 3315.0555

3315.0555 DETERMINING WORKER STATUS.

Subpart 1. Essential factors. When determining whether an individual is an employee or an independent contractor, five essential factors must be considered and weighed within a particular set of circumstances. Of the five essential factors to be considered, the two most important are those:

A. that indicate the right or the lack of the right to control the means and manner of performance; and

B. to discharge the worker without incurring liability. Other essential factors to be considered and weighed within the overall relationship are the mode of payment; furnishing of materials and tools; and control over the premises where the services are performed.

Other factors, including some not specifically identified in this part, may be considered if a determination is inconclusive when applying the essential factors, and the degree of their importance may vary depending upon the occupation or work situation being considered and why the factor is present in the particular situation.

Subp. 2. Additional factors considered. Additional factors to be considered are those listed in items A to H.

A. Availability to public. That an individual makes services available to the general public on a continuing basis is usually indicative of independent status. An individual may offer services to the public in a number of ways including having an office and assistants, displaying a sign in front of the home or office, holding a business license, having a listing in a business directory or a business listing in a telephone directory, or advertising in a newspaper, trade journal, or magazine.

B. Compensation on job basis. A person working in employment is usually paid by the hour, week, or month. Payment on a job basis is customary where the worker is independent. Payment by the job may include a predetermined lump sum which is computed by the number of hours required to do the job at a fixed rate per hour or periodic partial payments based upon a percent of the total job price or the amount of the total job completed. The guarantee of a minimum salary or the granting of a drawing account at stated intervals with no requirement for repayment of the excess over earnings indicates the existence of employment.

C. Realization of profit or loss. An individual who is in a position to realize a profit or suffer a loss as a result of the individual's services is generally independent, while the individual who is working in employment is not in that position.

D. Obligation. An individual working in employment usually has the right to end the relationship with an employer at any time the individual wishes without incurring liability, although the individual may be required to provide notice of termination for some period in advance of the termination. An independent worker usually agrees to complete a specific job. An independent worker is responsible for its satisfactory completion and is liable for failure to complete the job.

E. Substantial investment. A substantial investment by a person in facilities used by the person in performing services for another tends to show an independent status. The furnishing of all necessary facilities by the employing unit tends to indicate the absence of an independent status. Facilities include equipment or premises necessary for the work, but not tools, instruments, clothing, and similar items that are provided by individuals working in employment as a common practice in their particular trade. A substantial expenditure of time or money for an individual's education is not necessarily indicative of an independent relationship. Substantial investment means a monetary investment representing something of considerable worth, in relation to the overall requirements of the person's chosen profession, trade, occupation, or vocation.

F. Simultaneous contracts. If an individual works for a number of persons or firms at the same time, it indicates an independent status because the worker is usually free from control by any of the firms. It is possible that a person may work for a number of people or firms and still be an employee of one or all of them.

G. Responsibility. An employing unit is usually responsible for the negligence, personal behavior, and work actions of a person working in employment in contacts with customers and the general public during times that the person is performing services for the employing unit. An independent worker is usually accountable for his or her own actions.

H. Services in the course of the employing unit's organization, trade, or business. Services that are in the course of the employing unit's organization, trade, or business consist of services which are a part or process of the employing unit's organization, trade, or business and ancillary or incidental services. Services which are a part or process of the employing unit's trade or business are generally performed by individuals in employment. Therefore, it is a consideration in determining the status of an individual. This consideration, as with all other considerations, is not a sole determinative factor. ""Part'' and ""process'' are not synonymous. Process refers to those services which directly carry out the fundamental purposes for which the organization, trade, or business exists, for example, painting and repairing automobile bodies in an automobile body paint and repair shop. Part refers to any other services which are essential to the operation or maintenance of the organization, trade, or business, for example, routine cleaning of premises and maintenance of tools, equipment, and buildings. Ancillary or incidental services include landscaping the areas around an automobile body paint and repair shop. Other services that meet the part, process, or ancillary classification are those services in connection with purchasing, receiving, storing, pricing, displaying, selling, and delivery of merchandise and housekeeping services required for the safety and comfort of customers and the general public or to maintain the premises in a manner as to promote business.

Subp. 3. Determination of control. Items A to M describe criteria for determining if the employing unit has control over the method of performing or executing services. The total circumstances must be considered to determine if control is present.

A. Authority over assistants. Control over the individual is indicated when the employing unit hires and pays the individual's assistants and supervises the details of the assistant's work.

B. Compliance with instructions. Control is indicated when an individual is required to comply with detailed instructions about when, where, and how to 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 evince control. Some individuals may work without receiving instructions because they are highly proficient in their line of work; nevertheless, the control factor is present if the employing unit has the right to instruct or direct the methods for doing the work and the results achieved. Instructions may be oral or may be in the form of manuals or written procedures which show how the desired result is to be accomplished. However, instructions required by state or federal law or regulation or general instructions passed on by the employing unit from a client or customer, generally does not evince control.

C.        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 employing unit. Periodic reports relating to the accomplishment of a specific result may not be indicative of control if, for example, the reports are used to establish entitlement to partial payment based upon percentage of completion of a job, or the reports are needed to determine compliance with the terms of a contract. Completion of receipts, invoices, and other forms customarily used in the particular type of business activity or required by law does not constitute written reports.

D. Place of work. Doing the work on the employing unit's premises is not control in itself; however, it does imply that the employer has control, especially when the work could be done elsewhere. When work is done off the premises it does indicate some freedom from control; however, in some occupations, the services are necessarily performed away from the premises of the employing unit and are still considered to be in employment.

E. Personal performance. Control is indicated if the services must be personally rendered to the employing unit. Personal performance of a very specialized work, when the worker is hired on the basis of professional reputation, as in the case of a consultant known in the academic and professional circles to be an authority in the field, is a less reliable indicator of control. Lack of control may be indicated when an individual has the right to hire a substitute without the employing unit's knowledge or consent.

F. Existence of a continuing relationship. The existence of a continuing relationship between an individual and the person for whom an individual performs services is a factor tending to indicate the existence of an employer-employee relationship. Continuing services may include work performed at frequently recurring, though somewhat irregular intervals, either on call of the employing unit or whenever work is available.

G. Right to discharge. The right to discharge is a very important factor indicating that the right to control exists particularly if the individual may be terminated with little notice, without cause, or for failure to follow specified rules or methods. An independent worker generally cannot be terminated without the firm being liable for damages if he or she is producing according to his or her contract specifications. Contracts which provide for termination upon notice or for specified acts of nonperformance or default are not solely determinative of the right to control. That a right to discharge is restricted because of a contract with a labor union or with other entities does not mean there is no control.

H. Set hours of work. The establishment of set hours of work by the employing unit indicates control. Where fixed hours are not practical because of the nature of the occupation, a requirement that the worker work at certain times is an element of control.
I. Training. Training of an individual by an experienced employee working with the individual, by required attendance at meetings, and by other methods, is a factor of control especially if the training is given periodically or at frequent intervals.

J.   Amount of time. If the worker must devote full time to the activity, control is indicated. Full time does not necessarily mean an eight-hour day or a five- or six-day week. Its meaning may vary with the intent of the parties, the nature of the occupation and customs in the locality. Full-time services may be required even though not specified in writing or orally. For example, a person may be required to produce a minimum volume of business which compels the person to devote all working time to that business, or the person may not be permitted to work for anyone else.

K. Tools and materials. The furnishing of tools, materials, and supplies by the employing unit is indicative of control over the worker. When the worker furnishes these items it indicates a lack of control, but lack of control is not indicated if the individual provides tools or supplies customarily furnished by workers in the trade.

L. Expense reimbursement. Payment by the employing unit of either the worker's approved business or traveling expenses, or both, is a factor indicating control over the worker. A lack of control is indicated when the worker is paid on a job basis and has to take care of all incidental expenses.

M. Satisfying requirements of regulatory and licensing agencies. If an employing unit is required to enforce standards or restrictions imposed by regulatory or licensing agencies, such action does not evince control.

Subp. 4. Procedures for determining control. The department shall determine if control exists by:

A. reviewing written contracts between the individual and the employing unit;
B. interviewing the individual or employing unit;
C. obtaining statements of third parties;
D. examining regulatory statutes governing the organization, trade, or business;
E. examining the books and records of the employing unit; and
F. making any other investigation necessary to determine if the elements of control specified in subpart 3 exist.

Subp. 5. Obtaining a determination or opinion. If an employing unit is unsure of the status of an individual performing services for it, the employing unit may obtain a written determination by submitting all relevant facts to the commissioner on questionnaires prescribed for these determinations. The determination shall be final unless a written protest is filed with the commissioner as set forth in Minnesota Statutes, section 268.12, subdivision 13. If any person contemplates hiring or engaging a worker to perform services and is unsure if the services would be deemed employment, a written opinion may be obtained by submitting information about the proposed work arrangement, as the hiring person perceives it will be, on questionnaires prescribed by the commissioner. The commissioner's opinion does not have the effect of a determination and is not subject to appeal. The person requesting the opinion shall clearly indicate that the situation is hypothetical and that an opinion, rather than a determination, is being sought. If an individual is hired or engaged to perform the services in question, a determination may be obtained. This part in no way limits the department's authority under Minnesota Statutes, section 268.12, subdivision 13, clause (1) to make determinations on its own motion.

MISSISSIPPI LAW

  Miss. Code § 71-5-11

 I. "Employment" means and includes: 

      (1) Any service performed, which was employment as defined in this section  and, subject to the other provisions of this subsection, including service  in interstate commerce, performed for wages or under any contract of hire,  written or oral, express or implied. 

 *****       (13) Service with respect to which a tax is required to be paid under any federal law imposing a tax against which credit may be taken for contributions required to be paid into a state unemployment fund, or which as a condition for full tax credit against the tax Imposed by the Federal  Unemployment Tax Act, 26 USCS Section 3301 et seq., is required to be  covered under this chapter, notwithstanding any other provisions of this subsection.        (14) Services performed by an individual for wages shall be deemed to be    employment subject to this chapter unless and until it is shown to the satisfaction of the commission that such individual has been and will continue to be free from control and direction over the performance of such services both under his contract of service and in fact; and the relationship of employer and employee shall be determined in accordance with the principles of the common law governing the relation of master and servant.  REGULATIONS  Code Miss. R. 38 000 006

38 000 006. Unemployment Insurance Regulations

 . . . .
TR-11. Independent contractors The Law provides that the relationship of employer and employee shall be determined in accordance with the principles of the common law governing the relation of master and servant. Generally, the relationship exists when the person for whom services are performed has the right to control and direct the individual who performs the services, not only as to the result to be accomplished by the work but also as to the details and means by which that result is accomplished. That is, an employee is subject to the will and control of the employer not only as to what shall be done, but how it shall be done. In this connection, it is not necessary that the employer actually direct or control the manner in which the services are performed; it is sufficient if he has the right to do so. The right to discharge is also an important factor indicating that the person possessing that right is an employer. Other factors characteristic of an employer are the furnishing of tools and the furnishing of a place to work to the individual who performs the service. In general, if an individual is subject to the control or direction of another merely as to the result to be accomplished by the work and not as to the means and methods for accomplishing the result, he is an independent contractor, not an employee.  If the relationship of employer and employee exists, the designation or description of the relationship by the parties as anything other than that of employer and employee is immaterial. Thus, if two individuals in fact stand in relation of employer and employee to each other, it is of no consequence that the employee is designated as a partner, co-adventurer, agent, or independent contractor. The measurement, method, or designation of compensation is also immaterial, if the relationship of employer and employee in fact exists. Generally, physicians, lawyers, dentists, veterinarians, contractors, sub- contractors, public stenographers, auctioneers, and others who follow an independent trade, business or profession, in which they offer their services to the public, are independent contractors and not employees. Whether or not persons performing services, directly or indirectly, for an employing unit are employees depends upon the particular facts in each case. No single test is conclusive and every employing unit claiming the existence of a relationship other than that of employer-employee shall make application to the Commission for determination of its status and shall furnish to the Commission a full and complete statement of all facts concerning its relationship with the person claimed to be an independent contractor, together with a copy of any contract existing between them. All persons performing services for any employing unit shall be deemed employees unless and until this rule shall have been complied with and their status shall have been otherwise determined by the Commission. After a decision has been made by the Commission relative to the employer-employee relationship, the employer will be notified in writing the mail. The employer has, within ten days from the mailing date of this decision, the right to protest the decision and request a hearing before the Commission, as provided in Section 71-5-355 (2)(b)(ix).

TR-12. Service in usual trade or business Any employing unit which contracts with or has under it any contractor or sub- contractor for any employment which it claims is not part of its usual trade, occupation, profession or business shall submit to the Commission a complete, detailed written statement of facts in support of such claim. No such claim shall be recognized until and unless) the Commission is satisfied of its validity and correctness.

TR-13. Contractors and sub-contractors must be reported.

Whenever and as an employing unit contracts with or has under it any contractor or sub-contractor for any employment which is part of its usual trade, occupation, profession or business, such employing unit may be required to furnish in writing to the Commission:

(a)  the name and address of each such contractor or sub-contractor,

(b)  the date of commencement of the work under such contract,

(c)  the place or places at which the work is to be performed,

(d)  whether such contractor or sub-contractor is registered as an employer under the Employment Security Law and,

(e) if registered, his registration number.

 . . . TR-16.  Employed individuals

An individual is in the employment or employ of another within the meaning of the Law if he performs service, including service in interstate commerce, for such other, for wages or under any contract of hire, written or oral,
expressed or implied. The relationship between the individual who performs such service and the person for whom such service is rendered must, however, as to such service, be the legal relationship of employer and employee. The Law makes no distinction between classes or grades of employees. Thus superintendents, managers, and other superior employees are employees within the meaning of the Law. The words "employ", "employer", and "employee'!, as used herein, are to be taken in their ordinary meaning. An employer, however, may be an individual, a corporation, a partnership, trust, or estate, association, joint-stock company, insurance company, or corporation, whether domestic or foreign, syndicate group, pool, joint adventure, or other unincorporated organization, group or entity. An employer may be a person acting in a fiduciary capacity or on behalf of another, such as a guardian, committee, trustee, executor or administrator, trustee in bankruptcy, receiver, assignee for the benefit of creditors, or conservator.
Whether the relationship of employer and employee exists, will in doubtful cases be determined upon examination of the particular facts of each case.

MISSOURI  LAW

Missouri Revised Statutes

Chapter 228 - Employment Security

§ 288.034 - Employment defined 1.    "Employment" means service, including service in interstate commerce, performed for wages or under any contract of hire, written or oral, express or implied, and notwithstanding any other provisions of this section, service with respect to which a tax is required to be paid under any federal unemployment tax law imposing a tax against which credit may be taken for contributions required to be paid into a state unemployment fund or which, as a condition for full tax credit against the tax imposed by the Federal Unemployment Tax Act, is required to be covered under this law.
***** 5.  Service performed by an individual for remuneration shall be deemed to be employment subject to this law unless it is shown to the satisfaction of the division that such services were performed by an independent contractor. In determining the existence of the independent contractor relationship, the common law of agency right to control shall be applied. The common law of agency right to control test shall include but not be limited to: if the alleged employer retains the right to control the manner and means by which the results are to be accomplished, the individual who performs the service is an employee. If only the results are controlled, the individual performing the service is an independent contractor.   COURT DECISIONS   Koontz Aviation, Inc. v. Labor & Ind. Rel. Comm'n, 650 S.W. 2d 331 (Mo. App. 1983). Drivers engaged to deliver delayed baggage to passengers were not engaged in an independent trade or business. Rx Delivery Service, Inc. v. Labor & Ind. Rel. Comm'n, 677 S.W.2d 936 (Mo. App. 1984) (drivers engaged to deliver packages for drug stores were employees). Stover Delivery Syst. Inc. v. Div. of Empl. Sec. 11 S.W.3d 685  (Mo. App. 1999). Applying common law test, court concluded that couriers were employees.  Drivers treated as independent contractors were required to sign non-compete agreements and follow a company manual, were disciplined or terminated for being late in reporting for work, were required to complete and obtain approval for detailed trip sheets, were referred to in company documents as "employees," wore company uniforms, and had no written agreement.

Kirksville Pub. Co., v. Div. of Empl. Sec.

MONTANA LAW

Montana Code   § 39-51-203. Employment defined. (1) "Employment", subject to other provisions of this section, means service by an individual, by a manager or member of a manager-managed limited liability company that has filed with the secretary of state, or by an officer of a corporation, including service in interstate commerce, performed for wages or under any contract of hire, written or oral, express or implied.     *****

(4)  Service performed by an individual for wages is considered to be employment subject to this chapter until it is shown to the satisfaction of the department that the individual is an independent contractor.

REGULATIONS

Mont. Admin. R. 24.35.302

24.35.302.  DEFINITION OF INDEPENDENT CONTRACTOR—EVIDENCE OF CONTROL

(1) An individual is an employee and not an independent contractor if the hiring agent controls or retains the right to control the way the individual renders services. The following factors must be considered to determine whether control exists:

(a)   The individual is required to follow written or oral instructions concerning when, where, or how work is to be done. Although some individuals, because of skill or expertise, work without receiving instructions, they may still be employees if the employer has the right to give instructions on work performance;

(b)  The success or continuation of a business depends in great part upon the services performed by the individual;

(c)   The hiring agent directs the hiring, supervising, or payment of the individual's assistants;

(d)  The relationship between the individual and the hiring agent is on a frequent, recurring basis, even if irregular or part time;

(e)  The individual is required to perform services at certain established times;

(f)  The work is performed on the business premises of the hiring agent. This factor is especially important if the work could be performed elsewhere;

(g)  The hiring agent requires, or has the right to require, the individual to perform services in a certain manner, or in a certain order or sequence;

(h)  The hiring agent requires the individual to submit oral or written reports;

(i)   The individual is paid based on the time spent doing the work rather than a flat fee;

(j)  The individual is paid or reimbursed for travel or other business-related expenses;

(k)  The hiring agent furnishes the facilities, tools, materials or other equipment to the individual;

(l)  The individual may be discharged at the will of the hiring agent, including the right to discharge for the failure to follow specified rules or methods. A union contract or statute which restricts the right of discharge does not indicate a lack of control;

(m)  Training is provided to the individual by the hiring agent;

(n)  The individual does not realize a profit or suffer a loss as a result of the services performed; or

(o)  The individual is prohibited or restricted from working for others or is required to devote primary attention to the hiring agent.

(2)   The above factors are weighed and evaluated depending on the circumstance of each case. A combination of these factors may indicate control or the right to control. Service performed by an individual for pay is considered to be employment until it is shown to the satisfaction of the department that the individual is an independent contractor.

NEBRASKA LAW

Nebraska Revised Statutes  

Section 48 - Labor

Section 48-604 - Employment, defined

            (1)                  Any   service  performed  after  June  30,  1941, including service in  interstate  commerce,  for  wages  under  a contract of hire, written or oral, express or implied; *****

            (5)              Services  performed  by  an  individual for wages, including wages received under  a  contract  of  hire,  shall  be deemed to be employment unless it is shown to the satisfaction of the  commissioner  that  (a)  such  individual  has been and will continue   to   be  free  from  control  or  direction  over  the performance of such services, both under his or her  contract  of service and in fact, (b) such service is either outside the usual course  of  the  business  for which such service is performed or such service is performed outside of all the places  of  business of  the  enterprise  for which such service is performed, and (c) such  individual  is  customarily  engaged  in  an  independently established  trade,  occupation,  profession,  or business.   The provisions  of  this  subdivision  are  not  intended  to  be   a codification  of  the common law and shall be considered complete as written; *****        

          (q)                Service performed for a motor carrier, as defined in 49 U.S.C. 13102, as such section existed on September 1, 2001, or section 75-302, as amended, by a lessor leasing one or more motor vehicles driven by the lessor or one or more drivers provided by the lessor under a lease, with the motor carrier as lessee, executed pursuant to 49 C.F.R. part 376, as such part existed on September 1, 2001, Title 291, Chapter 3, as amended, of the rules and regulations of the Public Service Commission, or the  rules  and  regulations  of  the  Division  of Motor Carrier Services.   This shall not preclude the determination of an employment relationship between the lessor and any personnel provided by the lessor in the conduct of the service performed for the lessee.   The existence of such a lease either prior to, on the date of, or after August 26, 1983, shall preclude a determination of liability as defined by the Employment Security Law after September 1, 1982;

COURT DECISION

NEVADA LAW  

Nevada Revised Statutes  

Title 53 - Labor and Industrial Relations Chapter 612 - Unemployment Compensation

  NRS § 612.065 "Employment" defined. Subject to the provisions of NRS 612.070 to 612.145, inclusive, "employment" means service, including service in interstate commerce, performed for wages or under any contract of hire, written or oral, express or implied.

NEW HAMPSHIRE LAW

 New Hampshire Revised Statutes  

Title 23 - Labor

Chapter 282A - Unemployment Compensation § 282-A:9 Employment       I.  "Employment'' means service, including service in interstate commerce, performed for wages or under any contract of hire, written or oral, expressed or implied, together with service performed within the state which constitutes "employment'' under the provisions of the Federal Unemployment Tax Act.
*****    III.   Services performed by an individual for wages shall be deemed to be employment subject to this chapter unless and until it is shown to the satisfaction of the commissioner of the department of employment security that:

      (a)  Such individual has been and will continue to be free from control or direction over the performance of such services, both under his contract of service and in fact; and

      (b)   Such service is either outside the usual course of the business for which such service is performed or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and

     (c)   Such individual is customarily engaged in an independently established trade, occupation, profession, or business.

REGULATIONS

N.H. Code Admin. R. Emp. § 503.04

Emp 503.04  Self-Employment.

(a)   For purposes of RSA 282-A:32, III [re disqualification for benefits due to leaving self-employment or closing a business], an individual shall be considered to have been previously self-employed or to have had a business if, as to an entity or activity 3 or more of the following are true:

(1)  The individual was a sole proprietor, partner, officer or director, both in name and in fact;

(2)               The individual had an investment or was a stockholder;

(3)               The individual formed the entity or became involved in the activity in order to create profits, which for purposes of this clause shall include wages, capital gains, dividends, salaries, commissions, bonuses, board, rent, housing, payment in kind, insurance, disability plans, retirement and similar advantages, and benefits;

(4)               The individual controlled or had the right to control;

(5)               The individual had a spouse, parent, child, brother, sister or step family member of the same relationship who was either an officer, manager, director, investor, stockholder or partner, who controlled or who had the express or implied right to control, and said family member either acceded to the decisions of the individual or delegated rights or authority to the individual; or
(6) The individual performed services not required to be done by an officer or director.

NEW JERSEY LAW  

New Jersey Statutes   Title 43 - Pensions and Retirement and Unemployment Compensation

Section 43:21-19 - Definitions

(i)                  (1) "Employment" means:

  (A)  Any service performed prior to January 1, 1972, which was employment as defined in the "unemployment compensation law" (R.S. 43:21-1 et seq.) prior to such date, and, subject to the other provisions of this subsection, service performed on or after January 1, 1972, including service in interstate commerce, performed for remuneration or under any contract of hire, written or oral, express or implied. *   *   *   *   * (6) Services performed by an individual for remuneration shall be deemed to be employment subject to this chapter (R.S.43:21-1 et seq.) unless and until it is shown to the satisfaction of the division that:

  (A)   Such individual has been and will continue to be free from control or direction over the performance of such service, both under his contract of service and in fact; and

  (B)    Such service is either outside the usual course of the business for which such service is performed, or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and

 (C)     Such individual is customarily engaged in an independently established trade, occupation, profession or business.

NEW MEXICO LAW

  New Mexico Statutes   § 51-1-42 - Definitions *   *   *   *   * F. "Employment":  (1)   means any service, including service in interstate commerce, performed for wages or under any contract of hire, written or oral, express or implied;  *****  (5) means services performed by an individual for an employer for wages or other remuneration unless and until it is established by a preponderance of evidence that:  (a) the individual has been and will continue to be free from control or direction over the performance of the services both under the individual's contract of service and in fact;  (b) the service is either outside the usual course of business for which the service is performed or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and  (c) the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the contract of service; 

NEW YORK LAW

New York Labor Law   Chapter 31 - Labor Article 18 - Unemployment Insurance Law Title 2 - Definitions

ADMINISTRATIVE PUBLICATION

ndependent Contractors

Understanding the distinction between independent contractors and employees could be vital for you and your business. You may genuinely believe that you have engaged individuals to perform services for you as independent contractors, only to discover that they are considered employees under the law and that you are liable for additional unemployment taxes and interest. To define your relationship with the individuals you engaged, you must assess the degree of direction and control you have over their services.

THE EMPLOYEE RELATIONSHIP  

The courts have ruled that no single factor or group of factors conclusively define an employer-employee relationship, and that you are an employer if you control what will be

done and how it will be done.

Indicators of control over an individual's activities may include:

• requiring full-time services

  requiring attendance at meetings and/or training sessions

  requiring oral or written reports

  requiring prior permission for absences

  stipulating the hours of work

  setting the rate of pay

  reserving the right to terminate the individual's services

• employee working is integral to the conduct of your business's operation

If you engage in any of these practices, you are exercising the rights of an employer and consequently may be considered liable under the U.I. law.

The courts have also ruled that an employment relationship may exist if you provide the individual with the means of performing services for you. Examples may include providing facilities, equipment, tools, and/or supplies. Also, control over important aspects of services performed other than results and means can create an employment relationship. For example, an employment relationship can be created when a temporary employment referral agency has direction and control of client contact, the individual's wages, and billing and collection from clients.
The manner of compensation for the individual's services is also a factor. Employment relationships may provide compensation in the form of a salary, an hourly rate of pay or drawing account against future commissions with no requirement for repayment of unearned commissions. Other forms of compensation indicative of employment making reimbursement or allowance for business or travel expenses, and fringe benefits.
The nature of the services performed is also used to determine an employer-employee relationship. Unskilled or casual labor is usually regarded as employment because it typically is subject to supervision. However, even professionals, such as doctors and lawyers, can be considered employees under certain circumstances. Even when you give the individuals considerable freedom of action, you are their employer as long as you have the legal right to control the method or results of the services.

THE INDEPENDENT CONTRACTOR  RELATIONSHIP

An independent contractor relationship is often indicated when the individual you engage to perform services is in an established business offering those services to the public.

Indicators of independent contractor status may include:

• advertising in electronic and/or print media

  listing in the commercial pages of telephone directories

  using business cards, business stationery, and billheads

  carrying independent insurance

  maintaining an establishment, or making significant

  investment in facilities

  assuming risk for profit or loss in providing services

• freedom to provide services concurrently for other businesses, competitive or non-competitive

If an employer-employee relationship exists, it does not matter what it is called by the person engaging the services. For example, if you issue individuals a 1099 form rather than a W-2 form, they may still be employees. Even if you have individuals sign a statement claiming independent contractor status and waiving any rights as employees, those individuals may still be considered employees under the law.

Remember that the real distinction between the employer-employee relationship and the independent contractor relationship depends primarily on the level of direction and exercised by the person engaging the services. It is not defined by what the relationship called by the participants. In addition, there are certain types of services which are excluded or covered by statute regardless of the common law tests of direction and control.

The distinction between independent contractors and employees can be vital for you and your business. Protect yourself by obtaining a determination in advance from our Liability and Determination Section. You can also direct questions regarding independent contractors to the Liability and Determination Section by  (518) 457-2635. www.labor.state.ny.us/business_ny/unemployment_insurance/uiemplyr/indcont.htm.

COURT DECISIONS

  The New York Unemployment Insurance Appeal Board routinely conclude that couriers and delivery persons are employees, and is usually upheld by the courts:

1.                  Wells, 451 N.Y.S. 2d 213 (App. Div. 1982), affirmed sub nom. Di Martino, 463 N.Y.S. 2d 189 (N.Y. 1983). 2.                  Field Delivery Service, Inc., 498 N.Y.S. 2d 111 (N.Y. 1985) (couriers for medical laboratory specimens), reversing 491 N.Y.S. 2d 601 (App. Div. 1985).

3.      Fox, 500 N.Y.S. 2d 212 (App. Div. 1986) (driver for photo courier service was not an employee), reversed, 512 N.Y.S. 2d 14 (N.Y. 1986). 4.      Ross, 500 N.Y.S. 2d 232 (App. Div. 1986) (decided the same day as Fox, ruling that messengers were employees), affirmed, 512 N.Y.S. 2d 14 (N.Y. 1986). 5.    Mid-Hudson Publications, Inc., 501 N.Y.S. 2d 490 (App. Div. 1986) (newspaper carrier is an independent contractor).

6.       Webley, 520 N.Y.S. 2d 78 (App. Div. 1987). 7.       Alfisi, 540 N.Y.S. 2d 571 (App. Div. 1989). 8.       CDK Delivery Service, 543 N.Y.S. 2d 537 (App. Div. 1989). 9.       Davila, 564 N.Y.S. 2d 220 (App. Div. 1990). 10.       Caballero, 585 N.Y.S. 2d 605 (App. Div. 1992). 11.      McKenna, 649 N.Y.S. 2d 953 (App. Div. 1993). 12.      Short, 649 N.Y.S. 2d 955 (App. Div. 1993) (tractor-trailer owner-driver). 13.      Ganapathy, 663 N.Y.S. 2d 680 (App. Div. 1997). 14.      Medical Transcription Plus, Inc., 755 N.Y.S. 2d 496 (App. Div. 2003).

NORTH CAROLINA LAW  

Chapter 96 - Employment Security

Article 2 - Unemployment Insurance Division N.C.G.S. § 96.8 Definitions   *   *   *   *   *  

(6)      a.   "Employment" means service performed including service in interstate commerce, except employment as defined in the Railroad Retirement Act and the Railroad Unemployment Insurance Act, performed for wage or under any                  contract of hire, written or oral, express or implied, in which the relationship of the individual performing such service and the employing unit for which such service is rendered is, as to such service, the legal relationship of employer and employee.  Provided, however, the term "employee" includes an officer of a corporation, but such term does not include (i) any individual who, under the usual common-law rules applicable in determining the employer-employee relationship, has the status of an independent contractor or (ii) any individual (except an officer of a corporation) who is not an employee under such common-law rules.

NORTH DAKOTA LAW

North Dakota Century Code

TITLE 52

SOCIAL SECURITY

  CHAPTER 52-01 DEFINITIONS AND GENERAL PROVISIONS  

52-01-01. Definitions. In the North Dakota Unemployment Compensation Law, unless

the context or subject matter otherwise requires: 17. "Employment" means: a. Any service performed prior to January 1, 1972, which was employment as defined in this subsection prior to such date, and subject to the other provisions of this subsection, service performed after December 31, 1971, including service in interstate commerce, by: ***** (3) Any individual who, under the provisions of subdivision e, has the status of an employee. ***** e. Services performed by an individual for wages or under any contract of hire must be deemed to be employment subject to the North Dakota Unemployment Compensation Law unless it is shown that the individual is an independent contractor as determined by the "common law" test. REGULATIONS  

N.D. Admin. Code § 27-02-14-01

27-02-14-01. Employment defined.

*   *  *   *   * 
5. Any service performed for another for wages or under any contract of hire is deemed to be employment unless it is shown that the individual performing the service is an independent contractor as determined by the "common law" test.
a. Generally, an employment relationship exists when the person for whom services are performed has the right to control and direct the individual who performs the services, not only as to the result to be accomplished by the work but also as to the details and means by which that result is accomplished. That is, an employee is subject to the will and control of the employer not only as to what must be done but how it must be done. In this connection, it is not necessary that the employer actually direct or control the manner in which the services are performed; it is sufficient if the employer has the right to do so. The right to discharge is also an important factor indicating that the person possessing that right is an employer. However, the right to terminate a contract before completion to prevent and minimize damages for a potential breach or actual breach of contract does not, by itself, suggest an employment relationship. Other factors characteristic of an employer, but not necessarily present in every case, are the furnishing of tools and the furnishing of a place to work, to the individual who performs the services. The fact that the contract must be performed at a specific location, such as a building site, does not, by itself, constitute furnishing a place to work if the nature of the work to be done precludes a separate site or is the customary practice in the industry. In general, if an individual is subject to the control or direction of another merely as to the result to be accomplished by the work and not as to the means and methods for accomplishing the result, the individual is an independent contractor. An individual performing services as an independent contractor is not as to such services an employee. Individuals such as physicians, lawyers, dentists, veterinarians, construction contractors, public stenographers, and auctioneers, engaged in the pursuit of an independent trade, business, or profession, in which they offer their services to the public, are independent contractors and not employees.
b. As an aid to determining whether an individual is an employee under the common law rules, twenty factors or elements have been identified as indicating whether sufficient control is present to establish an employer- employee relationship. These twenty factors have been developed based on an examination of cases and rulings considering whether an individual is an employee. The degree of importance of each factor varies depending on the occupation and the factual context in which the services are performed. These twenty factors are designed only as guides for determining whether an individual is an employee; special scrutiny is required in applying these twenty factors to assure that formalistic aspects of an arrangement designed to achieve a particular status do not obscure the substance of the arrangement; that is, whether the person or persons for whom the services are performed exercise sufficient control over the individual for the individual to be classified as an employee. These twenty factors are described below:

(1) Instructions. A person who is required to comply with other persons' instructions about when, where, and how the person is to work is ordinarily an employee. This control factor is present if the person or persons for whom the services are performed have the right to require compliance with instructions.

(2) Training. Training a person by requiring an experienced employee to work with the person, by corresponding with the person, by requiring the person to attend meetings, or by using other methods, indicates that the person or persons for whom the services are performed want the services performed in a particular method or manner.

(3) Integration. Integration of the person's services into the business operations generally shows that the person is subject to direction and control. When the success or continuation of a business depends to an appreciable degree upon the performance of certain services, the persons who perform those services must necessarily be subject to a certain amount of control by the owner of the business.

(4) Services rendered personally. If the services must be rendered personally, presumably the person or persons for whom the services are performed are interested in the methods used to accomplish the work as well as in the results.
(5) Hiring, supervising, and paying assistants. If the person or persons for whom the services are performed hire, supervise, and pay assistants, that factor generally shows control over the persons on the job. However, if one person hires, supervises, and pays the other assistants pursuant to a contract under which the person agrees to provide materials and labor and under which the person is responsible only for the attainment of a result, this factor indicates an independent contractor status.
(6) Continuing relationship. A continuing relationship between the person and the person or persons for whom the services are performed indicates that an employer-employee relationship exists. A continuing relationship may exist where work is performed at frequently recurring although irregular intervals.
(7) Set hours of work. The establishment of set hours of work by the person or persons for whom the services are performed is a factor indicating control.
(8) Full time required. If the person must devote substantially full time to the business of the person or persons for whom the services are performed, such person or persons have control over the amount of time the person spends working and impliedly restrict the person from doing other gainful work. An independent contractor, on the other hand, is free to work when and for whom he or she chooses.
(9) Doing work on the premises of the person or persons for whom the services are performed. If the work is performed on the premises of the person or persons for whom the services are performed, that factor suggests control over the person, especially if the work could be done elsewhere. Work done off the premises of the person or persons receiving the services, such as at the office of the worker, indicates some freedom from control. However, this fact by itself does not mean that the person is not an employee. The importance of this factor depends on the nature of the service involved and the extent to which an employer generally would require that employees perform such services on the employer's premises. Control over the place of work is indicated when the person or persons for whom the services are performed have the right to compel the worker to travel a designated route, to canvass a territory within a certain time, or to work at specific places as required.
(10) Order or sequence set. If a person must perform services in the order or sequence set by the person or persons for whom the services are performed, that factor shows that the person is not free to follow the person's own pattern of work but must follow the established routines and schedules of the person or persons for whom the services are performed. Often, because of the nature of an occupation, the person or persons for whom the services are performed do not set the order of the services or set the order infrequently. It is sufficient to show control, however, if such person or persons retain the right to do so.
(11) Oral or written reports. A requirement that the person submit regular or written reports to the person or persons for whom the services are performed indicates a degree of control. By contract, however, parties can agree that services are to be performed by certain dates and the persons performing those services can be required to report as to the status of the services being performed so that the person for whom the services are being performed can coordinate other contracts that person may have which are required in the successful total completion of a particular project.     
(12) Payment by hour, week, month. Payment by the hour, week, or month generally points to an employer-employee relationship, provided that this method of payment is not just a convenient way of paying a lump sum agreed upon as the cost of a job. Payment made by the job or on a straight commission generally indicates that the worker is an independent contractor.
(13) Payment of business or traveling expenses, or both. If the person or persons for whom the services are performed ordinarily pay the person's business or traveling expenses, or both, the person is ordinarily an employee. An employer, to be able to control expenses, generally retains the right to regulate and direct the person's business activities.
(14) Furnishing of tools and materials. The fact that the person or persons for whom the services are performed furnish significant tools, materials, and other equipment tends to show the existence of an employer-employee relationship.
(15) Significant investment. If the person invests in facilities that are used by the person in performing services and are not typically maintained by employees (such as the maintenance of an office rented at fair value from an unrelated party), that factor tends to indicate that the person is an independent contractor. On the other hand, lack of investment in facilities indicates dependence on the person or persons for whom the services are performed for such facilities and, accordingly, the existence of an employer-employee relationship.
(16) Realization of profit or loss. A person who can realize a profit or suffer a loss as a result of the person's services (in addition to the profit or loss ordinarily realized by employees) is generally an independent contractor, but the person who cannot is an employee. For example, if the person is subject to a real risk of economic loss due to significant investments or a bona fide liability for expenses, such as salary payments to unrelated employees, that factor indicates that the person is an independent contractor. The risk that a person will not receive payment for his or her services, however, is common to both independent contractors and employees and thus does not constitute a sufficient economic risk to support treatment as an independent contractor.
(17) Working for more than one firm at a time. If a person performs services under multiple contracts for unrelated persons or firms at the same time, that factor generally indicates that the person is an independent contractor. However, a person who performs services for more than one person may be an employee for each of the persons, especially where such persons are part of the same service arrangement.
(18) Making service available to general public. The fact that a person makes his or her services available to the general public on a regular and consistent basis indicates an independent contractor relationship.
(19) Right to discharge. The right to discharge a person is a factor indicating that the person is an employee and the person possessing the right is an employer. An employer exercises control through the threat of dismissal, which causes the person to obey the employer's instructions. An independent contractor, on the other hand, cannot be fired so long as the independent contractor produces a result that meets the contract specifications.

(20) Right to terminate. If the person has the right to end his or her relationship with the person for whom the services are performed at any time he or she wishes without incurring liability, that factor indicates an employer-employee relationship. A contract can be terminated by the mutual agreement of the parties before its completion or by one of the parties to the contract before its completion to prevent a further breach of the contract or to minimize damages. This situation indicates an independent contractor relationship.