Jim Poage On Contractors & The Darden Factor

While many business owners rely on contractors to work on their structures and feel the responsibility for working safely rest solely with them, I would caution the business owner about taking this approach.  In many ways an owner can be found responsible under OSHA’s multi-employer workplace definition and suffer penalties and fines along with their contractor.  Also, the Darden factor, which came from the U.S. Supreme Court case Nationwide Mutual Ins. Co. vs Darden, established some definitions of when a contractor or temporary employee would be considered an actual employee of the company when enforcing safety violations.  The factors considered are:

  1. Right to control the manner and means by which work is accomplished.
  2. The level of skill required to perform effectively.
  3. Source of required instruments and tools.
  4. Location of work.
  5. Duration of relationship between parties.
  6. The right of the employer to assign new projects to the worker.
  7. The extent of the worker’s control over when and how long to work.
  8. Method of payment.
  9. The worker’s role in hiring and paying assistants.
  10. Whether work is the regular business of the employer.
  11. Whether the employer is in business.
  12. The provision of employee benefits.
  13. The tax treatment of the worker.

If you use contractors, I would recommend having an attorney review your practices, and make sure you have the appropriate documents in place to protect your business.

 

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