In B. & R Sales v. Washington Dept. of Labor & Industries, (2015 WL 1035902, 2015), the court upheld a lower court ruling that workers who were hired to install floor coverings were employees and not independent contractors. The case arose when B & R was required to pay workers compensation premiums for floor covering installers. The Board of Industrial Insurance Appeals relied on the fact that the workers were performing personal labor even though they used expensive specialized tools. Installing floor coverings required physical labor, plus skill and expertise. The installers were required to provide the tools and equipment they needed and a van to transport them. The installers also had the right to hire additional workers.
The statute, RCW 51.08.180, defines “worker” as: “every person in this state who is engaged in the employment of or who is working under an independent contract, the essence of which is his or her personal labor for an employer…. ”
The court said:
Our Supreme Court adopted a test for whether a contract’s essence is personal labor in White v. Department of Labor & Industries, 48 Wash.2d 470, 474, 294 P.2d 650 (1956). The court held that a contract’s essence is not personal labor if the contract was intended to cover an independent contractor
(a) who must of necessity own or supply machinery or equipment (as distinguished from the usual hand tools) to perform the contract …, or (b) who obviously could not perform the contract without assistance …, or (c) who of necessity or choice employs others to do all or part of the work he has contracted to perform.
Id. at 474, 294 P.2d 650. In analyzing these factors, we consider the contract, the work to be done, the situation of the parties, and other attendant circumstances. Dana’s Housekeeping, 76 Wash.App. at 608, 886 P.2d 1147. We focus on the realities of the situation rather than the technical requirements of the test. Id.
The court concluded that a contractor falls within the statute if “the primary object of the contract is to procure the contractor’s personal services rather than to procure the contractor’s specialized equipment.”
In turning to the facts of the case the court said:
the evidence also was clear that the contractors’ skilled, personal labor and not the equipment was the primary object of the contracts. B & R did not enter into the contracts to secure the use of specialized equipment like large vinyl rollers, power stretchers for carpet, specialized saws with a diamond blade for cutting ceramic tile, or similar equipment. Instead, a B & R representative testified that the business relied on the contractor’s knowledge—i.e., their learned skills and experience—to install several different types of floor coverings. In addition, the work the contractors performed was very labor intensive requiring the skillful installation—by hand—of various types of flooring materials. The tools were merely ancillary to the contractors’ performance of their skilled, personal labor….
Here, the primary object of the independent contracts—the essence of those contracts—was the contractors’ skilled, personal labor and not their specialized equipment. Therefore, we hold that B & R’s contractors constitute “workers” under RCW 51.08.180.8
Because the contracts were for the personal labor of the workers, the workers were considered to be employees and not independent contractors.
