Employment Law Report
Employee or Independent Contractor?
by Debra H. Dawahare
The Kentucky Court of Appeals has recently upheld the Kentucky Worker’s Compensation Board’s decision to overturn an Administrative Law Judge’s opinion that a roofer was an independent contractor rather than an employee. In Terry Steinrock and Glenn Coke d/b/a Glenn Coke General Contracting v. Howard C. Cook, et al, Claimant Howard Cook engaged in roofing work for T. W. Steinrock Roofing, a subcontractor of Glenn Coke General Contracting. Cook, who also did restaurant and printing jobs and worked in warehouses, had taken up roofing to make ends meet. He filed a workers compensation claim following an injury while working for Steinrock. Steinrock and Coke protested that he was an independent contractor, and the ALJ agreed. However, the Worker’s Compensation Board thought otherwise.
Both the Board, and the Kentucky Court of Appeals in affirming the Board, looked to Ratliff v. Redmon, 396 S.W.2d 320 (Ky. 1965) to review the nine factors for determining whether an individual is an employee or an independent contractor:
These factors are: (1) The extent of control that the alleged employer may exercise over the details of the work; (2) Whether the worker is engaged in a distinct occupation or business; (3) Whether that type of work is usually done in the locality under the supervision of an employer or by a specialist, without supervision; (4) The degree of skill the work requires; (5) Whether the worker or the alleged employer supplies the instrumentalities, tools and place of work; (6) The length of the employment; (7) The method of payment, whether by the time or the job; (8) Whether the work is part of the regular business of the alleged employer; and (9) The intent of the parties.
The Court of Appeals and the Board both noted that the Ratliff test had been refined in Chambers v. Wooten’s IGA Foodliner, 436 S.W.2d 265 (Ky. 1969) to emphasize four factors: the nature of the work as related the alleged employer’s general business; the alleged employer’s extent of control over the work; the alleged employee’s professional skills; and the parties’ true intentions.
The Court of Appeals concluded that the Board had not erred in deciding that claimant Cook had no legally “distinct occupation” at the time of his injury, and that there was no evidence that Cook was engaged in a roofing business independent of his work for Steinrock.
While the Court of Appeals was required to defer to the Board, unless the Board overlooked or misconstrued controlling law or flagrantly erred in evaluating the evidence so that it caused gross injustice, the Court of Appeals’ painstaking summary of applicable law serves as an affirmation of the venerable Ratliff and Chamber cases, and a reminder of the analysis for determining whether a person is performing work as an independent contractor or an employee.