Virginia Lawyers Weekly reports on a recent case in which Scott Brian Dunn (“Dunn”), the owner of an unincorporated business, sought workers compensation benefits alleging he was an employee of a general contractor, Cityscape, and not an independent contractor. Dunn’s business had a tax identification number, workers’ compensation insurance, a business license, business cards, and an online presence. The court said that Cityscape did not retain the right to control Dunn and therefore Dunn was an independent contractor. The court said:
No “hard and fast rule” exists for determining whether a person is an employee of a company rather than an independent contractor. Creative Designs Tattooing Assocs., 56 Va. App. at 308 (quoting Hann v. Times-Dispatch Pub. Co., 166 Va. 102, 105-06 (1936)). Four criteria are generally reviewed when a court is asked to determine whether a person is an “employee” under the Act: “‘(1) [s]election and engagement of the servant; (2) payment of wages; (3) power of dismissal; and (4) the power of control of the servant’s action.’” Dillon Constr., 55 Va. App. at 430 (quoting Crowder v. Haymaker, 164 Va. 77, 79 (1935)). Virginia courts have held previously that “[t]he potential power of control, not the actual exercise of control, is the important element.” Id. at 431 (quoting Va. Emp. Comm’n v. A.I.M. Corp., 225 Va. 338, 347 (1983)).
The right of control includes not only the power to specify the result to be attained, but also the power to control “the means and methods by which the result is to be accomplished.” Id. (quoting Richmond Newspapers, Inc. v. Gill, 224 Va. 92, 98 (1982)). “An employer/employee relationship exists if the party for whom the work is to be done has the power to direct the means and methods by which the other does the work.” Id. (quoting Intermodal Servs., Inc. v. Smith, 234 Va. 596, 601 (1988)). “If the latter is free to adopt such means and methods as he chooses to accomplish the result, he is not an employee but an independent contractor.” Id. (quoting A.I.M. Corp., 225 Va. at 347). “The extent of the reserved right of control may be determined by examining the performance of the parties in the activity under scrutiny.” Id. (quoting Intermodal Servs., Inc., 234 Va. at 601). This Court examines the nature of the work to determine on a case-by-case basis whether the employer possessed the requisite degree of control for the claimant to qualify as an employee. See Purvis v. Porter Cabs, Inc., 38 Va. App. 760, 770 (2002).
We disagree with Dunn’s contention that Cityscape retained the right to exercise sufficient control over the means and methods of Dunn’s work to render Dunn their employee. The evidence reflected that Cityscape did not closely supervise Dunn. As the Commission found, George and Boswell “coordinated the entire project and oversaw [Dunn’s] work, but neither of them dictated the means and methods by which [Dunn] accomplished the tasks assigned to him.” While Dunn’s supervisors checked behind Dunn’s work to ensure it met Cityscape’s standards, Dunn did not require instruction regarding how to complete his job duties.
Moreover, while the evidence suggests that Cityscape supplied Dunn with certain materials necessary to perform his duties, Dunn supplied his own tools. Along with the tools he already owned, Dunn had “no problem going out and buying [more tools]” on his own if necessary. In fact, George could not “think of a tool specifically that we bought [Dunn].” Dunn also held himself out to the public as a business owner performing the same work independently as the work he did for Cityscape. In 2008, Dunn started his business, specializing in cabinet and hardware installation, woodworking, and trim, which is the same work he was asked to perform at Cityscape’s Lynchburg job site and on other previous Cityscape jobs. Dunn’s business had a tax identification number, workers’ compensation insurance, a business license, business cards, and an online presence. Dunn’s vehicle was also licensed and insured under his business. At no point did Cityscape restrict Dunn (or his business) from working on other jobs outside the Lynchburg job site. There were also other subcontractors at Cityscape’s Lynchburg job site, including Home Servicing Construction, which Cityscape hired to perform many of the same duties that Dunn was hired to perform.
Dunn cites several factors in support of his argument that he was an employee, including that he was paid an hourly wage, that Boswell dictated when he worked, and that he had to submit his hours to Boswell to get paid. Notwithstanding Dunn’s arguments, we find that the Commission properly weighed the totality of the evidence and correctly found that the evidence was sufficient to support a finding that Cityscape did not retain the right to control the method and means of the work Dunn performed. Thus, we hold that the Commission did not err in finding that Dunn was an independent contractor.
Dunn v. Cityscape LLC, et al., Record No. 0358-22-3, Feb. 7, 2023, 2022. CAV unpublished opinion (Athey). From the Virginia Workers’ Compensation Comm’n. Hannah Bowie for appellant. Richard D. Lucas for appellees. VLW 023-7-073, 6 pp.