California Common Law Employment Test Landmark Cases

The essence of the common law test of employment is in the "control of details." A number of factors may be considered in evaluating this control, including: (1) whether the worker is engaged in a distinct occupation or business; (2) whether, considering the kind of occupation and locality, the work is usually done under the alleged employer's direction or without supervision; (3) the skill required; (4) whether the alleged employer or worker supplies the instrumentalities, tools, and place of work; (5) the length of time the services are to be performed; (6) the method of payment, whether by time or by job; (7) whether the work is part of the alleged employer's regular business; (8) whether the parties believe they are creating an employer-employee relationship. See: (1) Estrada v. FedEx Ground Package System, Inc. (2007) 154 Cal.App.4th 1 (2) Tieberg v. Unemployment Ins. App. Bd. (1970) 2 Cal.3d 943, 949 (3) Empire Star Mines Co. v. Cal. Emp. Com. (1946) 28 Cal.2d 33, 43-44 (4) Air Couriers Internat. v. Employment Development Dept. (2007) 150 Cal.App.4th 923, 933 The parties' use of a label to describe their relationship does not control and will be ignored where the evidence of their actual conduct establishes a different relationship exists. (Estrada, supra, at p. 11; Borello, supra, at p. 349.)