TN 9 (05-11)
RS 02101.154 Laborers
A. Definition of unskilled work
Unskilled work involves little or no judgment and simple duties that the worker can learn on the job in a short period. The job could require considerable strength.
B. Introduction for laborers
Laborers are an occupational group composed of people whose work usually requires strength rather than skill, such as laborers, coal hustlers, gardeners, handy men, janitors, odd-job men, porters, window washers, and other unskilled workers. Many laborers perform menial tasks and odd jobs. Occasionally they engage in independent businesses of their own, but in the great majority of cases, they are employees. They are present in virtually all fields of industry.
C. Employee status of laborers
Generally, unskilled workers’ services do not involve the exercise of any trade, skill, or business judgment. The work they do is so simple in nature that direct supervision is not necessary; however, the right to control is present and enforceable by the right to discharge the worker. Laborers usually work on the employer’s premises at specified times, and with tools and facilities the employer provides. They may work on a permanent basis, services may be recurring, or they may be traveling workers. Pay is normally computed on a time rather than a lump-sum basis. The looseness of the arrangement between the laborer and the purchaser of the services, combined with the fact that supervision over the work is usually not necessary, makes it difficult to realize that the employer has a right to direct and control the worker. For example, a homemaker may tell a repairperson who hired him to paint the porch today, mow the lawn tomorrow, and construct a rabbit hutch the next day, etc. The homemaker knows he can do these things or she would not have hired him. The homemaker leaves the repairperson to work independently. Both of them know that the homemaker has the right to stop him on one job and start him on another job, to speed him up or slow him down, to express displeasure with the rabbit hutch and make him rebuild it or, to stand behind him and direct his every action. He knows he must comply with her demands or he will lose his job.
D. Independent contractor status of laborers
As independent contractors, unskilled workers usually:
advance to the stage where they use business judgment to earn a livelihood;
do not have to perform the services personally, although they may do so of their own accord;
deal with unskilled tasks and odd jobs, but contract to get the work done;
hold themselves out to the public as available for furnishing a certain type of service for a fixed price;
are free to hire assistants (and are responsible for the assistants). They direct and pay them, and are liable to pay taxes on their wages;
may or may not have an office or shop, depending on the size of the business, but furnish their own tools and the helpers' tools;
obtain work by advertising in newspapers, maintaining a business listing in a telephone or service directory, or through recommendations by friends and customers;
are responsible only for completing the jobs within a certain time and are free to use their own methods and means to do the work; and
succeed or fail depending on how they manage their assistants, protect their investment through proper care of tools and equipment, and their business reputation.
E. Principal factors that indicate an employment relationship
The principal factors that generally indicate an employment relationship are:
either party may end the relationship without liability;
a right to set or change the order of the services;
payment for the work on a time or salary basis as distinguished from a lump-sum or job basis;
the employer furnishes tools and equipment;
the employer’s right to instruct or supervise the worker about the method to do the work;
the worker does not have the opportunity to realize a profit or suffer a loss;
the worker does not pay business expenses; and
the worker must perform the services personally.
Consider the other factors listed in RS 02101.027 through RS 02101.068, as they are common to both independent contractor and employer-employee relationships. You must explore and weigh all relevant information before answering the legal question of whether the right to direct and control associated with an employer-employee relationship exists.
F. Wage exclusions
If the laborer is an employee, the work may constitute service not in the course of the employe