Independent Contractor: Elements: Right of Control

MONTANA SUPREME COURT DECISIONS
Wild v. Montana State Compensation Fund, 2003 MT 115 Retention of the right to fire is strong evidence of employer-employee status as the right to terminate the relationship without liability is not consistent with the concept of independent contractorship
Larry's Post Co. v. Unemployment Ins. Division, 238 Mont. 190, 777 P.2d 325 (1989) The right to control is necessarily implied in every contract that gives the employer the right to insist that services be performed according to specifications. Evidence of employer's control over woodcutters was demonstrated by written contracts that enumerated several performance specifications, employer's right to specify and change the size of posts to be cut depending on need, employer's monitoring of work area to assure that woodcutters followed stipulations, and employer's right to withhold from pay to insure compliance.
Johnson v. Montana Department of Labor and Industry, 240 Mont. 288, 783 P.2d 1355 (1989) Where homeowner who hired carpenters to perform remodeling work but did not tell them how to perform that work, and expected them to use their expertise in carrying out the work, the homeowner did not have the right to control associated with employment. The homeowner merely controlled the result of the carpenters' work, not the methods the workers used to accomplish the end result.
American Agrijusters Co. v. Montana Department of Labor and Industry, 1999 MT 241, 296 Mont. 176 Right of control is the "most crucial factor" in distinguishing between employees and independent contractors. It is the "right, not just the exercise, of control" that is of the utmost importance. An individual is an employee of another when the other has the right to control the details, methods, or means of accomplishing the individual's work and not just the end result of the work.
American Agrijusters Co. v. Montana Department of Labor and Industry, 1999 MT 241, 296 Mont. 176 Subsidiary of insurance company that provided claims adjusting services "substantially controlled ‘how" the crop adjusters performed their adjusting work" where it trained and supervised workers and reviewed job assignments.
Walling v. Hardy Construction, 247 Mont. 441, 807 P.2d 1335 (1991) An employer of an independent contractor controls the "end result" of the contractor's work, while control of the "means" by which the work is accomplished indicates that the worker is an employee. Without destroying independent contractor status, the owner or general contractor is entitled to as much control of the details of the work as is necessary to ensure that he gets the end result from the contractor that he bargained for.
Walling v. Hardy Construction, 247 Mont. 441, 807 P.2d 1335 (1991) Independent contractor status was not destroyed where general contractor reserved and exercised right to control the sequence of work, a condition necessary to ensure the end result on a project employing as many as forty employees of the general contractor and fifteen employees of the independent contractor.
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) As noted in Larson, "if control of a trucker goes no farther than directions on where to pick up or put down the load, this is usually held to be only a part of the end result." Independent contractor status was indicated by evidence that truckers were free to load as and when they wished, to choose their own route speed, time of travel, and driver.
Sharp v. Hoerner Waldorf Corp., 178 Mont. 419, 584 P.2d 1298 (1978) Employment relationship indicated where worker providing janitorial services was told what to clean, what not to clean, where to clean, and was sometimes given duties other than cleaning.
Sharp v. Hoerner Waldorf Corp., 178 Mont. 419, 584 P.2d 1298 (1978) The four factors to be considered in determining right of control are (1) direct evidence of right or exercise of control; (2) method of payment; (3) furnishing of equipment; (4) right to fire. The consideration to be given these factors is not a balancing test. Rather, independent contractorship is established usually only by a convincing accumulation of these and other tests, while employment can if necessary be solidly proved on the strength of one of the four items alone.
Sharp v. Hoerner Waldorf Corp., 178 Mont. 419, 584 P.2d 1298 (1978) The vital test in determining whether a person employed to do a certain piece of work is a contractor or an employee is the control over the work which is reserved by the employer. The determinative test is based on the right, not just the exercise, of control. In determining right of control, attention must be directed to the employment contract and the fact of the employment situation.
 
WORKERS' COMPENSATION COURT DECISIONS
Peck v. Int'l Paper Co. [12/16/10] 2010 MTWCC 35 While the control test has most often been used to determine whether or not an individual is an independent contractor or an employee, it may also be used to determine who the employer is, in a given situation.  An employee will have been transferred from one employer to another when the right to control the details of his work has passed from one to another.  Where the right to control the details of an injured worker’s work never transferred from one employer to another, the first employer is still considered his employer for an occupational disease claim.
Hallquist v. Independent Contractor Central Unit [06/10/10] 2010 MTWCC 16 The Court concluded that an alleged employer had no right of control over auto mechanics who worked out of the same shop as his business where the alleged employer’s undisputed testimony was that he did not exercise control over the mechanics, and the mechanics were free to come and go as they pleased, could accept as much or as little work as they chose, could give free or discounted work to anyone they wanted and brought and retained their own clientele.  Furthermore, when one mechanic ceased to work at the shop with no explanation, the alleged employer did not demand that he return to work, nor did he offer the mechanic’s space to anyone until it was clear the mechanic had no intention of returning.
Emergency Preparedness Systems v. Scobie [08/17/09] 2009 MTWCC 28 Where the employer and employee both testified that the employee’s contribution to the company included his relationships with a vast network of medical products distributors, the employee testified that he made his own schedule, worked from home, and determined how to identify distributors for the alleged employer, and the employee admitted that the alleged employer did not tell him how to perform his work, the right of control factor weighed in favor of independent contractor status.
Weidow v. UEF [01/17/09] 2009 MTWCC 4 Whether the property owner directly controlled Petitioner’s work or conveyed his authorization for Petitioner’s duties through another person is immaterial to the issue of whether he retained the right to control Petitioner’s work.
Bowler v. Independent Contractor Central Unit [08/14/08] 2008 MTWCC 42 Where a flooring business owner told the worker what to accomplish on each job, even though the worker determined the best way to complete the construction projects, the Court is persuaded that the owner had the right to direct the worker’s actions in the performance of his work. Also weighing in favor of the right to control is that the owner often dictated when the workday would begin and end based on the times he picked up and dropped off the worker.
Kinney v. UEF [03/05/07] 2007 MTWCC 10 Petitioner presented a calendar to his alleged employer which indicated he would be available for work for only six days in six weeks. Petitioner admitted he was dictating his hours of employment, and this tends against his alleged employer having the right of control.
TYAD, Inc. v. ICCU [04/08/05] 2005 MTWCC 16 Where a strip club controls the daily times dancers perform, provides significant equipment and services essential to the dancers performing, and can terminate dancers at any time without liability simply by giving written notice, the dancers are employees, not independent contractors.
Feather v. UEF [03/28/05] 2005 MTWCC 15 Where the party hiring a caregiver dictates the details and schedule for care, and expressly reserves the right to dictate those details, part (a) (freedom from control) of the independent contractor test is not met and the caregiver is an employee.
Colmore v. UEF/Forgey [3/4/04] 2004 MTWCC 22 Where the agreement for hire allows the hiring party to designate work on an “as-you-go” basis, the control is more consistent with an employment relationship than one of an 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.)

Mortensen v. ICCU [7/12/01] 2001 MTWCC 38 Where a tavern hires exotic dancers to provide adult entertainment under a written agreement which entitles the tavern to schedule the times of dancers' performance, to discipline them for failure to show up for work in a timely fashion, to fix rates for table dances, and to exclusively schedule any private parties at which the dancers may perform, the dancers are subject to significant control such that they are employees under statutes governing unemployment insurance.
Grywusiewicz v. State Fund [9/24/98] 1998 MTWCC 67 Car salesman who was also performing carpentry work to remodel a new building for the employer was not an independent contractor. He did not meet the requirement of section 39-71-120, MCA (1997) that he be engaged in an independent trade, occupation or business. Moreover, at the time of the accident, his remodeling carpentry work was interlaced with his work as a salesman and was subject to the employer's direction and control.