Labor attorney Bob Roginson, at a Harbor Truckers for a Sustainable Future meeting last week, reviewed some of the tests used to determine whether a worker is an independent contractor or an employee. For example:

• The degree to which the contractor's work is controlled by the company is a factor to be considered. Does the contract worker have set hours? Can he refuse work? May he work elsewhere?
• Workers opportunity for profit and loss is a consideration. Does the contract worker have the opportunity to increase his earning or suffer a loss through his decisions?
• The permanency of the relationship between the company and the contract worker is a factor. Is it a temporary business relationship or a long-term commitment?
• The extent that the work performed is an integral part of the organization is a factor. A contract driver working for a trucking company is more likely to be considered an employee than a computer support person hired to maintain the company's IT system.
• Contractual language in which the relationship between the company and the contract worker is spelled out does not by itself ensure that he is not an employee, but it helps.

Although a significant number of drivers - some say a majority - want to remain contract drivers, that is no guarantee they won't be found to be employees. The driver's cooperation is not necessary for a government agency to prove its case.

-- The Cunningham Report