The ALJ's determination is based on two tests: (1) the right to control test; and (2) the usual trade or occupation of the employer test. The first of these, the right to control, is made by looking at how much control over the details of the work the "employer" maintains. The "indicia of control" are things like: does the worker work a set schedule, does the employer have the right to hire and fire, are taxes withheld, is the employment indefinite or a one-time job, does the worker use the employer's tools, uniforms, vehicles, etc., and several others. The second part of the test involves determining whether or not the injured worker is performing work that is central to the main business involved or in something ancillary.
The most common offenders (I hate to give away this secret) are trucking companies and cab companies. If you hire a trucker to drive your truck for your trucking company, and if you tell him where to go, when to go, pay for the gas, and pay him regularly, he is your employee, no matter how well worded your Independent Contractor Agreement is.
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