With the growing prevalence of “gig” employment through the popularity of ride share and delivery apps, the employment relationship between a business and worker is not always clearly defined as to whether a worker is an employee or an independent contractor. In Ohio, workers’ compensation coverage doesn’t extend to independent contractors regardless if the worker is injured in the performance of job duties or on the employer’s property.

Independent contractors typically are not paid by the hour or salaried, but rather by the job or project as a lump sum. Independent contractors have no limit as to the number of businesses with which they can contract and exercise a high degree of control over the performance of the work itself. Employers utilizing independent contractors will specify the desired outcome of the project but do not direct how that outcome will be achieved. Instead, those decisions and details are left to the independent contractors in determining how the project will be completed. Often in ascertaining the employment relationship, the degree of control the employer exerts over the worker is balanced against the degree of independence the worker exercises from the business. In 1943, the Ohio Supreme Court outlined a simple test for determining the legal status of the employment relationship with its decision in Gillum v. Indus. Comm., 141 OS 373 (1943), stating:
 

Whether one is an independent contractor or in service depends on the facts of each case. The principal test applied to determine the character of the arrangement is that, if the employer reserves the right to control the manner or means of doing the work, the relation created is that of master and servant, while if the manner or means of doing the work or job is left to one who is responsible to the employer only for the result, an independent contractor arrangement is thereby created.

Ohio courts have not found one factor dispositive in determining employment status, employing instead a totality of the circumstances test. Recently in deciding State e rel. Friendship Supportive Living v. Ohio Bur. Of Workers’ Comp., Slip Opinion No.  2023 Ohio 957, the Court reiterated the right-to-control test is not “marked by a bright-line rule but rather by a set of non-exhaustive factors…1) who controls the details and quality of the work; 2) who controls the hours worked; 3) who selects the materials, tools and personnel; 4) who selects the routes traveled; 5) the length of employment; 6) the type pf business; 7) the method of payment; and 8) any pertinent agreements or contracts.

To be eligible for workers’ compensation coverage, a valid employer/employee relationship must exist. As such, it is imperative when utilizing independent contractors, employers clearly define that relationship, preferably in a written contract as well as in the practical application of the job performance. In these claims, the devil is in the details and those details need to be left for the worker to decide how they will be accomplished.

For additional information about this topic, please contact Agnes Stucke or any member of our Workplace Solutions team at Ice Miller. 

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.