Independent Contractor: Elements: Right to Fire


Larry's Post Co. v. Unemployment Ins. Division, 238 Mont. 190, 777 P.2d 325 (1989) "Perhaps the most important indication that [employer] retained control over the woodcutters was the fact that the relationship between the two was terminable at will without liability on the part of either party. This fact signified the existence of an employment relationship."

American Agrijusters Co. v. Montana Department of Labor and Industry, 1999 MT 241, 296 Mont. 176 The power to fire is the power to control. The absolute right to terminate the work relationship without liability is inconsistent with the concept of independent contractor, pursuant to which the contractor should have the legal right to complete the project under contract and to treat any attempt to prevent completion as a breach of contract.
Walling v. Hardy Construction, 247 Mont. 441, 807 P.2d 1335 (1991) Independent contractor status was indicated where general contractor of school construction project could not "fire" concrete sub-contractor without terminating written contract and incurring liabilities. Fact that contract gave general contractor the right to fire employees of the concrete sub-contractor did not negate independent contractor status where sub-contractor himself could not be "fired" from project without contractual ramifications.
Schrock v. Evans Transfer and Storage, 225 Mont. 348, 732 P.2d 848 (1987) Driver for trucking company, who was furnished truck and could be terminated by trucking company for failing properly to maintain equipment, was employee because he was not in fact free from control of trucking company, despite existence of contract purporting to establish independent contractorship.
Solheim v. Tom Davis Ranch, 208 Mont. 265, 677 P.2d 1034 (1984) Larson quoted that "the one element of right to fire, with its attendant implied right to control, has carried the day for employment relationship." Independent contractor status not defeated, however, even though rancher could have terminated hauling relationship, where there was no indication rancher could have stopped trucker in mid-route and replaced him with a different driver.
Sharp v. Hoerner Waldorf Corp., 178 Mont. 419, 584 P.2d 1298 (1978) Company's right to terminate janitorial worker for any reason was strong indication of employment status because the right to terminate the relationship without liability is not consistent with the concept of independent contractorship.
Hallquist v. Independent Contractor Central Unit [06/10/10] 2010 MTWCC 16 Where the alleged employer testified that he did not have the right to evict any mechanic from the shop space they shared so long as the mechanic paid his share of the overhead, and no other evidence in the record indicates that he had the right to fire any mechanic, and where, when a mechanic ceased to work in the shop without explanation the alleged employer stored the mechanics tools indefinitely and did not demand that he return to work, the Court concluded the alleged employer did not have the right to fire the alleged employees.
Emergency Preparedness Systems v. Scobie [08/17/09] 2009 MTWCC 28 Where the employee testified he could be terminated by the employer, and the employer testified that he did not believe he could “terminate” the employee, but could have told him to stop locating independent distributors, the Court did not find the employer’s testimony credible, and therefore held that this factor weighed in favor of employee status.
Bowler v. Independent Contractor Central Unit [08/14/08] 2008 MTWCC 42 Where a flooring business owner testified that he and the worker decided to part ways and the worker testified that he quit, the Court finds that no clear evidence was presented which allows it to make a determinative finding concerning this factor.
Colmore v. UEF/Forgey [3/4/04] 2004 MTWCC 22 Where the agreement for the hired worker provides that the hiring party will designate work on an “as-you-go” basis, the agreement in essence allows the hiring party to terminate the agreement at will and such an agreement is more consistent with an employment relationship than one of independent contractor. (Note: WCC affirmed in part, and reversed in part, on other grounds in Colmore, et al. v. Uninsured Employers' Fund, 2005 MT 239.)