Roofer who worked as part of a team and was told where to go and what to do was an employee


From  WestlawNext (subscription required) — The Supreme Court of Oklahoma addressed the issues of employee or independent contractor in the context of an unemployment claim.  The court said:

In Page v. Hardy, 1958 OK 283, 334 P.2d 782, this Court set out several factors to be considered when determining whether an employee/employer relationship exists. Those are:

(a) the nature of the contract between the parties, whether written or oral; (b) the degree of control which, by the agreement, the employer may exercise on the details of the work or the independence enjoyed by the contractor or agent; (c) whether or not the one employed is engaged in a distinct occupation or business for others; (d) the kind of occupation with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision; (e) the skill required in the particular occupation; (f) whether the employer or the workman supplies the instrumentalities, tools and the place of work for the person doing the work; (g) the length of time for which the person is employed; (h) the method of payment, whether by the time or by the job; (i) whether or not the work is a part of the regular business of the employer; (j) whether or not the parties believe they are creating the relationship of master and servant; and (k) the right of either to terminate the relationship without liability. *2 Page v. Hardy, 334 P.2d at 784–785.

The claimant testified at a hearing before the trial tribunal. Claimant is “a documented Hispanic worker” who does not speak English and did not complete the third grade. He started working for Precision in 2006 on a ranch in Texas where he did construction work. He lived there while working on the site. In 2009 he worked January and February, then stopped, and in August he went back to work for Precision.

Claimant testified on the degree of control exercised by his supervisors. He worked as part of a crew of eight to nine people, and his supervisors at Precision told him where to go, when to be there, when he could leave, and when he could go to lunch. The crew would go to lunch together. He worked from eight to fourteen hours a day. He was not allowed to come and go from a construction site whenever he wanted. His work was framing, building doors, and installing sheetrock. He did not read blueprints or construction plans, and he did what he was told to do. He testified he had no “special schooling or training” to teach him how to do construction work. He answered in the affirmative when questioned whether he was “simply told what to do, and you did it with your hands.”

He testified he would go from one job site to another as directed by his supervisors who were relating Mark Dickerson’s directions, but sometimes there was a week or two, “possibly three weeks the most,” but “sometimes” it was longer between construction assignments. He stated that between the assignments from Precision there was a block on a street where he could go with “a lot of people standing in there, and sometimes they go and hire you for one day … [s]ometimes it’s just like for one day or two,” and he was paid seven to eight dollars per hour. There was no testimony on the nature of the work claimant performed when working for a day or two for the various people who hired him on the street.

The court determined that the worker was an employee.

Read the full case at Carbajal v. Precision Builders, Inc.

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