Murray v. Option Care’s Empirical Analysis

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1 state decisions

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1. “Optioncare argues that Nurse Rusich was an independent contractor because it gave Nurse Rusich a Form 1099 rather than a Form W-2, because it paid her out of its operations account rather than its payroll account, because it paid Nurse Rusich per visit rather than paying her a salary and because it gave her no vacation. However, while all of these facts are consistent with Optioncare's theory that Nurse Rusich was an independent contractor, they are not necessarily determinative. Instead, the single most important factor in determining whether there is an employment relationship versus an independent contractor relationship is the right of the employer to control the work of the employee. In the present case, Nurse Rusich testified in her deposition... to the effect that Optioncare did have the right to control her work. It is not entirely clear how much Optioncare actually exercised its right to control Nurse Rusich's work and Optioncare cites some testimony by her to the effect that Optioncare did not actually exercise much control over various aspects of her work. However, it is the right of the employer to exercise such control, regardless of the actual exercise thereof, which is most important. Based upon the summary judgment record, particularly the transcript of Nurse Rusich's deposition, we must conclude that there is a genuine issue of fact as to whether Nurse Rusich was an employee or independent contractor of Optioncare.”

   1 later decision quote this exact passage
   e.g. 929 So. 2d 188 - State v. Progressive SEC. Ins. Co.