Independent contractors

Contractor or Employee?
Introduction
In a start-up, it is often necessary to hire workers. To avoid legal obligations to employees, entrepreneurs will often characterize these workers as independent contractors. However, defining a worker as an independent contractor does not automatically make that worker an independent contractor. Rather, whether a worker is an independent contractor or employee is determined by examining the substance of the relationship between the worker and employer.[1] There are various common-law tests available to examine the substance of this relationship. Importantly, no particular common-law tests is determinative about the legal status of the worker.[2] Regardless, this blog will provide a brief overview of the primary common-law test used by courts, the fourfold test.
 
Four-fold Test
In Montreal v Montreal Locomotive Works Ltd et al, (“Montreal Locomotive”),[3] the House of Lords articulated the fourfold test. In summary, the fourfold test requires examining whether (1) the alleged employer is exerting control, or has the power to exert control, over the worker, (2) whether the worker owns the tools of his trade, (3) whether the worker has the chance of profit, and (4) whether the employer has the risk of loss.[4]

Control Test
Control is the right to give orders to a worker regarding where, when and how work is performed. Workers required to follow such orders are more likely to be employees. Independent contractors typically determine the hours, place and method of work for themselves.
Examples of control include the employer’s right to:

• Hire.

• Set hours of work and approve time off.

• Supervise work.

• Instruct on the method of work.

• Require reports or meetings.

• Restrict the kind of work a worker may perform or the type of product he may sell.

• Restrict who the worker may perform work for or sell a product to.

• Restrict or approve assistants or subcontractors hired by a worker.

• Set codes of conduct.

• Impose discipline.

• Enforce non-solicitation or non-competition terms against the worker.

• Dismiss the worker.

 
Ownership of Tools
A worker who owns and supplies the tools, materials, licenses and contacts required to perform agreed work is more likely to be conducting his own business and be considered an independent contractor. A worker who is supplied with these things by an employer is more likely to be part of the employer’s business and considered an employee.
 
”Tools” is a catchall term used to describe a wide variety of items and resources required to perform work, including:

• Hand tools such as hammers, screwdrivers, handsaws, etc.

• Power tools.

• Vehicles, including transport trucks.

• Construction equipment.

• Trade licences and certifications.

• Client lists.

• Demonstration products and promotional materials.

• Offices and office equipment.

• Computers and other electronic devices.

 
Chance of Profit and Risk of Loss
Exposure to profit or loss on a work contract is indicative of an independent contractor. As a business owner, an independent contractor makes expenditures on equipment, workers, advertising, licenses, or other resources. Having contracted for a particular volume or quality of work, his return is affected by how efficiently he can meet that volume or quality.
 
In contrast, employees typically invest only their time in performing work. They are usually paid wages or salary and do not run a risk of loss if work is not performed efficiently. Likewise, they are typically not entitled to share in increased profits resulting from their work.
 
Conclusion
In conclusion, entrepreneurs must be careful whenever retaining a worker. Although the entrepreneur may be under the impression, they are retaining the services of an independent contractor, they may in fact have hired a new employee.
 
Sunny Uppal is a member of the BLG Business Venture Clinic, and is a 3rd year student at the Faculty of Law, University of Calgary.

References
[1] Kaszuba v. Salvation Army Sheltered Workshop (1983), 83 C.L.L.C. 14,032 (Ont. Div. Ct.)
[2] 671122 Onatrio Ltd v Sagaz Industries Canada Inc, 2001 SCC 59 at para 46 [Sagaz Industries].
[3] [1947] 1 DLR 161.
[4] Montreal (City) v Montreal Locomotive Works Ltd (1946), [1947] 1 DLR 161 at p 169 [Montreal Locomotive].