Elf-help calling workers 'independent contractors' is not a get out of jail free card

Companies from Federal Express and United Parcel Service to the corner gift shop hire extra people to help out during the holiday season, and most of these businesses state in their employment agreements that the person is an independent contractor (contractor). An employer validly choses this completely proper employment classification to avoid having to pay contractors benefits or withhold taxes from their compensation.

Additionally, the employment agreements that many employers and contractors enter state essentially that the employer lacks any liability for harm that that contractor causes while on the business premises of the employer. As good as this sounds, such a clause is largely unenforceable. (Pun intended.)

The very basic legal principle regarding the liability of someone who pays a contractor is the degree of control that that person exerts regarding the work that the contractor does determines that liability. This control is quite extensive regarding most holiday work; the employer tells the contractor when and where he or she must arrive to work, establishes at least general appearance guidelines, provides quite specific directions regarding his or her job duties and how that person must complete them, and can make additional reasonable requests for things such as asking occasionally that he or she run down the street for coffee and snacks.

Additionally, hiring a contractor involves the issue of agency about which I wrote several weeks ago. I, and any other person, can hold an employer liable for a reasonable statement regarding a discount on an item or another matter by the person behind the counter regardless of whether he or she is a contractor or permanent employee.

A business owner is almost always liable as well for an physical wrong, which the law identifies as a tort, that someone who works for him or her commits at that person's place of business. The threat of violence that a gas station attendant directed at me about which I wrote provides an example of this. I am confident that I could have collected compensation from the station owner if the attendant had actually hit me and I could have proved that that harmed me.

This was a case in which the attendant's employer exerted adequate control over his working conditions to trigger that liability. As a side note, a neighbor told me recently that he was told that the attendant was fired because he had a history of threatening customers in the way that he had responded to me.

The lessons from all this are to hire the best people that you can, supervise them as well as you can, and understand that calling someone a contractor often does not avoid liability for that person's actions and statements.

Please do feel free to share your comments and questions as additions to this entry or as e-mail to nelsonexaminer@gmail.com

Topics: Negligence , Employment law