Averett v. Grange

¶1concurring:

¶2I concur with the majority opinion. I write only to comment upon Justice Durham’s dissent. Justice Durham correctly notes that the trend of many jurisdictions is to move away from a strict right-to-control test, either in favor of or in combination with a number of other tests. Those tests purportedly acknowledge a more realistic and comprehensive view of the increasingly complicated nature of employment relationships. In particular, Justice Durham proposes that we adopt a “relative nature of the work” test, which would examine all facets of the employment relationship in determining employment status. She borrows this test from IB Arthur Larson, Larson’s Workmen’s Compensation Law § 43.52.

¶3While we may well wish to reexamine our general adherence to the right-to-control test at some time in the future, I believe that this case does not afford the appropriate opportunity to do so now. In particular, the application and impact of Justice Durham’s proposed test is not adequately defined or assessed in her dissent. Moreover, it is not clear that Larson’s commentary accounts for recent trends in on-the-job injury litigation. I address each of these concerns briefly in turn.

¶4Justice Durham focuses on the employment arrangement negotiated between Geneva Rock and Grange. She points to a number of factors — primarily involving Grange’s responsibility for maintaining his own equipment and managing his own payroll, insurance, and deductions — which purportedly place Grange in the role of an independent contractor. She then proceeds to outline one of the proposed tests contained in Larson’s treatise, the “relative nature of the work” test. Her reliance on this test is, in my view, highly problematic in this particular case. Indeed, application of that test does not seem to produce the result Justice Durham *252reaches. Professor Larson indicates that application of the nature-of-the-work test has increasingly led to diminution of the independent contractor status and expansion of employee status. Larson, § 43.53 to .54. In other words, according to Larson, application of the nature-of-the-work test is more likely (rather than less likely, as implied by Justice Durham’s dissent) to result in a finding of employee status than application of a strict right-to-control test.

¶5Of course, there may be fact patterns more likely to result in a finding of independent contractor status under the nature-of-the-work test than under the right-to-control test and vice versa. The critical point, however, is not so much the labels that are applied to the tests employed for determining the employment status of workers for compensation purposes, but rather the underlying policy rationale that should govern. That rationale must be articulated with some degree of clarity if we are to offer adequate guidance to the bench and bar in applying any new standard.1 I believe that simply invoking Larson without describing how his test would address the fact pattern at hand does not fulfill that obligation.

¶6This brings me to my second concern with Justice Durham’s reliance upon Larson’s treatise. Larson presumes that the policy justification underlying workers’ compensation is

that the cost of all industrial accidents should be borne by the customer as a part of the cost of the product. It follows that any worker whose services form a regular and continuing part of the cost of that product, and whose method of operation is not such an independent business that it forms in itself a separate route through which his own costs of industrial accident can be channelled, is within the presumptive area of intended protection.

¶7Larson, § 43.51. On the basis of that policy, Larson outlines a trend toward offering the protection of workers’ compensation insurance to an ever-increasing number of workers, many of whom would have been considered independent contractors under the common law master/servant analysis. This focus on the “beneficent” purposes of workers’ compensation, however, fails to acknowledge the increasing desire of employers to place themselves under the umbrella of the exclusive remedy provision of workers’ compensation and the concomitant desire of many workers to disassociate themselves from the “protection” of workers’ compensation remedies in exchange for the potentially more generous offerings of a traditional negligence action. The availability of contingent fee representation renders this latter avenue even more attractive for middle or lower class persons who, prior to the increasing prominence of such arrangements, could not afford legal representation at an hourly rate. Consequently, any reevaluation of the criteria for determining employee status should, as a part of its policy rationale, account for all of the incentives governing employers and workers rather than merely reciting the cost-shifting justification offered by Larson.

¶9dissenting:

¶10I respectfully dissent. The majority opinion relies exclusively on the traditional right-to-control test. I write separately to voice concerns about the adequacy of this test, applied exclusively, and to suggest an expan*253sion of the factors to be considered in the analysis of certain employment relationships.

¶11In this case, the record shows that both Grange and Geneva Rock sought to create a working relationship different from employer-employee. In creating the lease which governed the relationship, the parties set out in writing several criteria that distinguished Grange from Geneva Rock employees performing identical jobs. First, Grange had the sole responsibility of maintaining and repairing his own truck. Second, Grange was to pay for his own operating costs, including his own fuel. Third, Grange was required to maintain his own liability insurance policy — he was not covered by Geneva Rock’s insurance policies. Fourth, Grange was required to pay for his own workers’ compensation insurance — neither party considered Grange a Geneva Rock employee for workers’ compensation purposes. Fifth, Grange was required to make his own payroll deductions. Sixth, because Grange had the right to “hire” other drivers to do Geneva Rock’s work, the lease clarified that Grange was responsible for making any necessary payroll deductions, carrying workers’ compensation insurance, and in other necessary ways, providing for his “employee drivers.” Finally, Grange was required to obtain and pay all costs of obtaining any necessary state permits, such as overweight road use permits, and all required licenses for his vehicle. The lease agreement also authorized Grange to employ his truck in business for other companies during the lease term so long as. that use did not interfere with Geneva Rock’s use of the vehicle.

¶12These facts demonstrate that in formulating their relationship, the parties contractually sought to maintain the separate identities of Grange Trucking and Geneva Rock. Such a formulation contemplates advantages to and concessions from both parties. By structuring the relationship to maintain the integrity of Grange’s independent contractor status, Geneva Rock did not have to pay liability or workers’ compensation insurance premiums for Grange; it did not need to service or license the equipment he used; and it was not required to pay a salary to an employee when his services were not needed. Geneva Rock paid independent contractors only a piecework rate, not a salary. However, in creating this structure, Geneva Rock also had to pay a higher rate for the piecework done by Grange than it paid its own employees for the same work; it lost any potential tax benefits associated with employee salaries; and it was subject to Grange’s discretion as to whom he would hire to drive the truck leased to Geneva Rock.

¶13Grange likewise acquired advantages and made concessions under the contractual relationship with Geneva Rock. By structuring his relationship with Geneva Rock as an independent contractor, Grange was paid at a higher rate than the Geneva Rock employees performing identical tasks. He did not have payroll deductions taken out of his paycheck. On the other hand, Grange knew that as an independent contractor he would not be paid on those days that Geneva Rock did not have work for him. He was also ineligible for employee benefits such as insurance or retirement programs.

¶14Freedom of contract generally allows the parties to structure their relationship as they see fit. This structure does not, in and of itself, resolve the question of Grange’s status for workers’ compensation purposes, however. It is certainly true that a party may be treated as an employee for workers’ compensation purposes even though a formal employer-employee relationship is never created. See, e.g., Maryland Casualty Co. v. Industrial Comm’n, 12 Utah 2d 223, 364 P.2d 1020, 1021-22 (1961). In fact, workers may very well be “employees” for some purposes, notwithstanding the parties’ contractual agreement that they are not in an employer-employee relationship. See Leach v. Board of Review, 123 Utah 423, 260 P.2d 744, 750 (1953) (for purposes of Employment Security Act, contractual agreement between dealers and installers that installers are contractors is not dispositive). Nonetheless, courts should not disregard evidence of the parties’ intentions when such evidence is readily available. It is not the prerogative of the courts to rewrite contracts of parties who have conscientiously attempted to establish a particular legal relationship merely to create easy solutions to legal questions that *254arise long after the relationship began. See John Call Eng’g, Inc. v. Manti City Corp., 743 P.2d 1205, 1208 (Utah 1987) (parties should be bound by terms of contracts they voluntarily sign); Resource Management Co. v. Weston Ranch & Livestock Co., 706 P.2d 1028, 1043 (Utah 1985) (duly executed contract should be overturned only by clear and convincing evidence); see also Maack v. Resource Design & Constr., Inc., 875 P.2d 570, 580 (Utah Ct.App.1994) (contract law exists to protect “expectancy interest created through agreement between the parties”).

¶15This court has previously addressed the relationship between the structure created by the parties’ contract and the appropriate characterization of a party’s legal status as employee or independent contractor. In Luker Sand & Gravel Co. v. Industrial Commission, 82 Utah 188, 23 P.2d 225 (1933), a case with very similar facts, we held that the owner and operator of a truck hired to haul gravel and rock by Luker was an independent contractor, not an employee, for workers’ compensation purposes. Portions of Luker focused on elements in the parties’ contract that demonstrated the parties’ decision to keep their business entities separate, not joined by an employment relationship. Such contractual elements included the truck owner’s ability to hire substitute drivers and the gravel company’s refusal to offer the driver continuous employment, thereby reserving the right not to pay the driver during down time. Partly on the basis of these considerations, the court concluded that the truck owner was not an “employee” notwithstanding evidence that Luker exercised some control over his work. Id. at 195-97, 23 P.2d at 228-29.

¶16Other courts in similar cases have gone beyond analysis based solely upon the right-to-control test. See, e.g., Reed v. Industrial Comm’n, 23 Ariz.App. 591, 534 P.2d 1090, 1095 (1975) (holding that truck driver who hauled rocks at direction of defendant was nonetheless an independent contractor, based in part on finding that “ ‘Reed ... was intended to be by both Reed and Movers, an independent contractor.’ ” (citation omitted)); see also IB Arthur Larson, Workmen’s Compensation Law § 43.54 (analyzing modern trend that is going away from strict “right-to-control” test and toward “nature-of-work” test) [hereinafter Larson]; id. § 44.22 (cataloging cases wherein court refused to find “employee” status despite showing of right-to-control elements of worker’s duties). It seems to me that the question of whether a worker has acquired “employee” status should not be dominated by strict adherence to the right-to-control test to the exclusion of additional important factors. I am persuaded by the trend in many jurisdictions away from the strict right-to-control test. See id. § 43.54. Many professionals would be considered the employees of their clients if the inquiry were limited to the control portion of the parties’ relationship. For example, a lawyer hired to prepare a will for a client will in some respects be under the “direction” or “control” of the client. The client may specify particular ways she wants asset distribution to take place; she may specify a time frame by which she needs the task completed; she may review the ongoing work and ask for detailed modifications; and she may “fire” the attorney if not satisfied with the work being done. The same could be said for accountants, therapists, and numerous other professionals whose clients require them to follow detailed instructions concerning the manner in which the tasks they have been retained to perform must be accomplished. Nevertheless, these clients cannot in any meaningful sense of the word be said to be the employers of these professionals without further demonstration that the parties have entered into that type of relationship.

¶17It is also useful to note that many of the circumstances supporting the initial adoption of the right-to-control test have changed over the years. During the industrial period of this century, when the right-to-control test gained popularity, an almost universal characteristic of employers was their direct supervision of subordinate employees. Such was, and may in fact still be, the nature of work in a factory or manufacturing setting. However, in today’s market, much of the work force has no direct “supervision,” as that term was used when the right-to-control test was developed. Consultants, systems analysts, and other modern business func*255tionaries have no counterpart in the industrial arena. Moreover, in the age of computers, modems, and fax machines, a significant amount of work product is generated away from the “direct” control of any supervisor. This does not mean that employees are not under the control of their employers; it simply demonstrates that what was once a reliable indicator of employment status — direct observation and control by a supervisor — is no longer easily demonstrated and is not necessarily the most meaningful indicia of worker status.

¶18I acknowledge that there are numerous approaches used in other jurisdictions to distinguish independent contractors from employees. However, I would apply the more contemporary, expansive approach, using an extended analysis in preference to approaches that adhere to static and narrowly tailored examinations of the parties’ working relationship. By examining the totality of circumstances surrounding the parties’ relationship, courts can better accommodate the diversity of work relationships that characterizes modem commerce. As noted above, the trend in most jurisdictions is toward the so-called “relative nature of the work” test as the touchstone for making an ultimate distinction between employee and independent contractor. See Larson, § 43.54. To illustrate how such an expanded approach might work, I would begin with the elements of the test catalogued by Professor Larson from various jurisdictions already employing it:

This test, then, which for brevity will be called the “relative nature of the work” test, contains these ingredients: the character of the claimant’s work or business— how skilled it is, how much of a separate calling or enterprise it is, to what extent it may be expected to carry its own accident burden and so on — and its relation to the employer’s business, that is, how much it is a regular part of the employer’s regular work, whether it is continuous or intermittent, and whether the duration is sufficient to amount to the hiring of continuing services as distinguished from contracting for the completion of a particular job.

¶19Larson, § 43.52. This language suggests several independent factors that a court ought to consider. The first of these is the nature of the work being done by the worker. The amount of skill involved in the work, taken alone, would add little relevant information, of course. A surgeon, whose work would always be considered “skilled,” might well be an “employee” of a hospital as a sole practitioner/contractor with privileges at numerous hospitals. However, the “skill” prong of the test does take on relevance when it is considered in relation to the work done at the facilities of the work provider. Stated differently, if an accounting firm hires a plumber to perform a job at its office, the work provided is skilled in relation to the work generally done by the firm. However, if the firm brings on an additional accountant, the additional work being done is not necessarily skilled or specialized in relation to the work being done by the firm “employees.” Still, a specialist accountant may be hired to do a particular project for an accounting firm and, although in the same line of work as the firm employees, would be performing skilled or specialized work in comparison to the other firm accountants.

¶20The second factor Professor Larson cata-logues is the independence of the worker from the work provider. Included in this factor are issues regarding how fully the worker holds him- or herself out as an independent business entity. Relevant questions might be whether the worker has independent business licenses or permits; whether the worker is required to carry his or her own liability, workers’ compensation, or other insurance policies; and whether the worker or work provider will be expected to remedy any accidents flowing from the work. This factor also entails assessment, directly or indirectly, of how the parties intended the relationship to be structured.

¶21A final element of this expanded test would examine the relative importance of the work being done to the ongoing operations of both the work provider and the worker. In other words, if more than fifty percent of the worker’s income routinely comes from one source, that source becomes more likely to be considered “employment” than a specific job. Of course, many independent contractors do routinely perform repetitive services for a *256company. For example, a window washer may wash the windows of a particular business on a weekly basis. However, if the window washing is so extensive that it encompasses more than half of the worker’s total work time and provides more than half of his or her income, then the business whose windows are being washed begins to take on the appearance of the employer of the window washer. In short, when called upon to distinguish an independent contractor from an employee, I believe that courts should apply the so-called “relative nature of the work” test, as outlined above. This test would provide a more workable and more realistic assessment of the critical issues than earlier tests that focused exclusively on the right to control.

¶22In conclusion, I would hold that the trial court erred when it held as a matter of law that Grange was an employee of Geneva Rock based solely upon the presence of some right by Geneva Rock to control details of Grange’s work. I would remand this case back to the trial court for application of the expanded standard I have outlined.