La. Admin. Code tit. 40 § IV-375

Current through Register Vol. 50, No. 8, August 20, 2024

Section IV-375 - Determining Whether Workers are Employees or Independent Contractors

A. The totality of the circumstances will be considered in determining whether workers are properly classified as employees or independent contractors, including the following factors regarding control and direction of each individual worker's position under R.S. 23:1472(12)(E)(I).

1. Behavioral Control. Facts that show a right to control or direct how the worker does the task for which the worker is hired. The type and degree of instruction given to the worker shall be considered including, but not limited to:

a. when and where to do the work;

b. what tools or equipment to use;

c. what workers to hire or to assist with the work;

d. where to purchase supplies and services;

e. what work must be performed by a specified individual;

f. what order or sequence to follow in performing the work;

g. how work results are achieved;

h. whether the worker is hired and discharged under specific terms of an agreement or at-will;

i. the extent to which the worker is subjected to pre-employment testing, credentialing, resume verification, background checks, drug testing and/or pre-employment physicals;

j. the extent to which the job opening was represented as employment; and

k. training given the worker.

2. Financial Control. Facts that show whether there is a right to control or direct the business aspects of the worker's job including, but not limited to:

a. the extent to which the worker has unreimbursed business expenses;

b. the extent of the worker's investment in the tasks beyond the worker's own time;

c. the extent to which the worker makes services available to the relevant market;

d. whether payment is made based solely upon time worked or includes other factors;

e. whether the worker tracks time worked and calculates amounts due; and

f. the extent to which the worker can realize a profit or loss.

3. Type of Relationship. Facts that show the nature of the parties' relationship including, but not limited to:

a. written contracts describing the relationship the parties intended to create;

b. whether the worker is provided employee-type benefits, such as insurance, a pension plan, vacation pay, or sick pay;

c. whether the relationship is of a definite term; and

d. the extent to which services performed by the worker are similar to duties of employees at the worksite.

4. A prior determination by a taxing authority regarding the relationship.

5. As used in R.S. 23:1472(12)(e), the term any control or direction shall include, but not by way of limitation, direction or control exercised at the worksite by any person authorized to direct or control the work performed.

La. Admin. Code tit. 40, § IV-375

Promulgated by the Workforce Commission, Office of Unemployment Insurance Administration, LR 40:549 (March 2014).

AUTHORITY NOTE: Promulgated in accordance with R.S. 23:1653 et seq.