Washington Administrative Code › Title 162 - Human Rights Commission › Chapter 162-16 - Employment › Section 162-16-230 - Jurisdiction - Independent contractors

Current through Register Vol. 24-14, July 15, 2024
(1)
Purpose of
		  section.
RCW    49.60.180 defines
		  unfair practices in employment. A person who works or seeks work as an
		  independent contractor, rather than as an employee, is not entitled to the
		  protection of
		  RCW
		     49.60.180. This section outlines the
		  standards that we will use to determine whether a person is an employee as
		  distinguished from an independent contractor for the purpose of entitlement to
		  the protection of
		  RCW
		     49.60.180.
(2)
Rights of independent
		  contractor.
While an independent contractor does not have the protection
		  of RCW
		     49.60.180, the contractor is protected by
		  RCW
		     49.60.030(1). The general
		  civil right defined in
		  RCW
		     49.60.030(1) is enforceable
		  by private lawsuit in court under
		  RCW
		     49.60.030(2) but not by
		  actions of the Washington state human rights commission.
(3)
General approach.
We will
		  consider all the relevant facts, particularly those bearing on the following
		  factors. No one factor is determinative, but the most important is the extent
		  to which the purchaser of work controls the manner and means of performance of
		  the work.
(a)
Control of work.
An
		  employment relationship probably exists where the purchaser of work has the
		  right to control and direct the work of the worker, not only as to the result
		  to be achieved, but also as to the details by which the result is
		  achieved.
(b)
Tools and place
		  of work.
Does the purchaser of the work or the worker furnish the
		  equipment used and the place of work? Generally, the purchaser of work
		  furnishes tools and equipment for employees while independent contractors
		  furnish their own. Some employees furnish some of their own tools,
		  however.
(c)
Skill level
		  involved.
The skill required in the particular occupation. Skilled
		  workers are typically less closely supervised than unskilled workers, but they
		  are employees if indicia of employment other than close supervision are
		  present.
(d)
Type of work
		  involved.
The kind of occupation, with reference to whether the work
		  usually is done under the direction of a supervisor or is done by a specialist
		  without supervision. Some persons, such as lawyers or doctors, may be employees
		  even though they are not closely supervised. The test for such specialists is
		  not whether the lawyer or doctor is closely supervised, but whether he or she
		  is treated the way that employed lawyers or doctors are commonly treated.
		  Lawyers and doctors are typically independent contractors, however, with
		  respect to their clients or patients.
(e)
Duration of work.
The length
		  of time during which the person has worked or the length of time that the job
		  will last. Independent contractors typically are hired for a job of relatively
		  short duration, but there are instances of independent contracts for an
		  indefinite period - for example, contracts for janitorial service.
(f)
Method of payment.
The
		  method of payment, whether by time or by the job. Independent contractors are
		  usually paid by the job but are sometimes paid by time. Employees are usually
		  paid by time but are sometimes paid by the job.
(g)
Ending the work
		  relationship.
Whether the work relationship is terminable by one party
		  or both parties, with or without notice and explanation. An employee is usually
		  free to quit and is usually subject to discharge or layoff without breach of
		  the employment contract. An independent contractor usually has more fixed
		  obligations.
(h)
Leave.
Whether annual leave is afforded. Leave with pay is almost
		  exclusively accorded to employees.
(i)
Integration of the work in the
		  purchaser's operations.
Whether the work is an integral part of the
		  business of the purchaser of it. Usually, employees rather than independent
		  contractors do the regular work of a business.
(j)
Accrual of benefits.
Whether
		  the worker accumulates retirement benefits. Retirement benefits are almost
		  exclusively accorded to employees.
(k)
Taxation.
Whether with
		  respect to the worker the purchaser of work pays taxes levied on employers,
		  such as the Social Security tax, unemployment compensation tax, and worker's
		  compensation tax, or withholds federal income tax. The tax laws do not have the
		  same purposes as the law against discrimination, so employee status for tax
		  purposes is helpful but not controlling.
(l)
Salary or income.
Whether
		  the worker treats income from the work as salary or as business income. See
		  subsection (3)(k) of this section.
(m)
Employer records.
Whether
		  with respect to the worker the purchaser of work keeps and transmits records
		  and reports required of employers, such as those required under the worker's
		  compensation act. Worker's compensation coverage, like tax coverage, is helpful
		  but not conclusive.
(n)
The
		  intention of the parties.
The fact that a contract says that the worker
		  is an independent contractor will be considered in this respect, but it is not
		  conclusive for the purpose of coverage of
		  RCW
		     49.60.180.