in·de·pen·dent adjective \ˌin-də-ˈpen-dənt\

1: not dependent: as a (1) : not subject to control by others

con·trac·tor noun \1 usually ˈkän-ˌtrak-tər, 2 usually kən-ˈ\

1: one that contracts or is party to a contract: as a : one that contracts to perform work or provide supplies

Two words with straightforward meanings; at least one would think. But put those words together—“independent contractor”—and their meaning in the workplace context is often anything but clear. Applying the independent contractor label carelessly can lead to a world of trouble.

Whether workers are properly designated as independent contractors, rather than employees, depends on a host of factors. The pivotal factor is whether the principal controls the manner and means of accomplishing the desired result.

Manner and Means: Determining The Level Of Control Exerted

If I offered to pay you to deliver something to a particular place before a particular time––say the ceremonial ball to Times Square by New Year’s Eve 2014––but I gave you no additional instructions, you would be free to choose the manner and means you used to get the ball there. Your route could be circuitous, or direct, as long as the ball arrived at the location before the deadline. You could mail it, carry it on a bus, drive it by car, fly it in a plane, or take it by boat.  You could, theoretically at least, hire a mule team to take you and the ball to New York. Or, you could avoid the hassle altogether and pay a friend to do it.On the other hand, if I instructed you on how to ensure that the ball arrived at the location, emphasizing what you had to do to get there––“drive this route”, “use this vehicle”, “stop at these locations along the way”, “make sure to do this, that, and the other”––I would control the manner and means of delivery. (In this example, the “manner and means” factor would point to an independent contractor relationship, although other factors might point in the other direction).

The California Court of Appeal recently emphasized this point in Beaumont-Jacques v. Farmers Group, Inc. In that case, the Court acknowledged that employers retain a broad, general power of supervision and control as to the results of the work so as to insure satisfactory performance of the contract.  That includes the right to inspect the work, and the right to make suggestions or recommendations as to details of the work.  However, independent contractors must still maintain “meaningful discretion,” for example by setting their own work days and hours, and hiring and supervising their own staff.

  • What Amount Of Control Is Too Much Control?

What if I gave you specific instructions about how the ball must be treated? Is it reasonable for me to insist that the ball arrive in one piece? Or, what if I demanded that the ball be ready for use upon arrival? By giving those simple instructions, do I somehow control the manner and means of your performance? Could a simple instruction regarding the need to have the ball operational and in good repair convert our contract into an employer/employee relationship? Probably not, but possibly.

  • The Devil Is In The Details

I am free to retain control over the results of your work, without changing the relationship from that of owner and independent contractor to employer and employee. For example, I have the right to inspect your work (did the ball arrive in one piece); make suggestions or recommendations regarding the details of the work (perhaps using a mule team is not the best approach); and I can prescribe alterations or changes in the work (the ball now must arrive before Robin Thicke’s performance at 10:00 p.m.)––all without directing the manner and means of performance. This makes sense, because otherwise I would be unable to ensure that the ball was delivered to Times Square in a usable manner, wholly thwarting the purpose of the agreement. That said, it’s a very fine line between offering suggestions or recommendations regarding the performance of services, and directing the performance of duties. The line blurs further when considering workers involved in the daily performance of their duties, not just the hypothetical one-time delivery of a ceremonial ball, merely used to illustrate a point. It’s not difficult to imagine a scenario where the suggestions and recommendations from the principal are viewed by a workforce as direction and control from the “boss”.

Workplace Solutions:

Take care to ensure that contractors are not converted to employees by exercising too much control over the performance of their duties. While making recommendations and inspecting the final results are fine, directing performance can become problematic. To effectively ensure that workers are properly classified, and to avoid the blurred lines of an ambiguous relationship, give up control and insist that they determine the manner and means of the desired result.