826.Certain Workers are Employees if the Common-Law Test is Not Met
826.1Are you considered an employee even if you do not meet the common law test?
Your work contract expects that you will do mostly all of the work;
You have no substantial investment in the facilities used to do your work (except for tools, equipment, transportation, or clothing employees usually provide); and
You have an on-going work relationship with the person for whom you work.
826.2Does it matter if the work contract is oral versus written?
No. The contract of service may be oral or written. The important issue in the contract is that you have no authority to delegate a substantial amount of your work to another person. However, there are cases where you might occasionally hire a substitute or assistant and still be an employee under this test. What is important is that it is intended that you perform the essential services of your job.
826.3What does it mean to have a substantial investment in facilities?
A substantial investment in facilities would be the investment of items such as office furniture, fixtures, premises, and machinery. A salesperson who maintains a home office may not have substantial investment; however, a salesperson with an office elsewhere would be considered to have a substantial investment in facilities.
826.4Are items workers have or use to do their jobs considered an investment in facilities?
Your investment in your education, training, tools, instruments, clothes, or vehicle (used to go to and from work) are not considered a substantial investment in facilities.
826.5What is meant by an on-going work relationship?
You have an on-going work relationship if you work regularly and frequently work for your employer. Regular part-time work and regular seasonal work are considered on-going. On the other hand, a single job transaction, even if it covers a considerable period of time, is usually not part of an on-going relationship.
Last Revised: Sep. 1, 2009