Mr. Schultz suffered a catastrophic spinal cord injury on November 1, 2017 while performing tree trimming services on the alleged employer’s premises. In 2013 Andy and Steve’s placed an ad for a tree trimmer and Mr. Schultz responded. It was agree that he would work for them on an as-needed basis as a subcontractor. An independent contractor release was signed and certified Mr. Schultz had adequate insurance for any injuries sustained. Mr. Schultz testified he did not obtain insurance.
Mr. Schultz wore an Andy and Steve’s shirt while trimming trees. He would perform this work by responding to texts or emails indicating where a job was located. He was free to refuse the work if he was unavailable. Upon finishing, he would inform Andy and Steve’s how many hours he worked and was then paid in cash without deducting taxes. He also carried cards indicating he was a tree trimmer; Mr. Schultz testified he did not pass out these cards.
Andy and Steve’s employed 6-8 employees. These employee’s wore Andy and Steve’s shirts, used equipment provided by Andy and Steve’s, reported to the shop each day, punched a time clock, and rode in a company truck. Mr. Schultz drove his own truck directly to a site, not to the shop, provided his own tools, and did not punch a clock. Andy and Steve’s did not inspect Mr. Schultz’ work.
A Claim Petition was filed when an employment relationship was denied and asserted he was an independent contractor. The compensation judge found he was an independent contractor. This was appealed arguing that the safe harbor provisions of Minn. Stat. 5224.0110 (laborers) were not analyzed. The WCCA agreed and remanded. On remand, the compensation judge did not take additional testimony or evidence, but made specific findings on each of the safe harbor criteria and found Mr. Schultz did not meet the criteria in the safe harbor provisions. The compensation judge again found he was an independent contractor. Mr. Schultz appealed again.
Mr. Schultz argued the compensation judge erred in her analysis on the employment status on or around the date of injury, claiming that the last year of work, he met the safe harbor criteria for an employee. Andy and Steve’s argued he met the safe harbor criteria for an independent contractor.
Determination of employment is ultimately a legal issue and the facts upon which a determination is made may include facts as found by the compensation judge. The most significant factor is the right to control the manner and performance of work.
The compensation judge found Mr. Schultz did not substantially meet all of the applicable criteria of the safe harbor provisions for an independent contractor under Minn. Stat. 5224.0110. The compensation judge also considered the criteria for safe harbor for an employee under Minn. Stat. 5224.0110 and found the Mr. Schultz did not meet the criteria either. Substantial evidence in the record supported the compensations judge’s findings that Mr. Schultz did not meet the criteria for independent contractor or employee under the safe harbor provisions. Because these criteria are not met, an application of Minn. Stat. 5224.0330 and 5224.0340 is looked at to review the means and manner of performance. Mr. Schultz had control over his own work and there was not always a continuous relationship. The compensation judge found the control over the means and manner of performing the job rested with Mr. Schultz which is supported by substantial evidence which supported the finding that Mr. Schultz was an independent contractor.
Takeaway: To fully analyze a situation and determine if a person is an employee or independent contractor, the safe harbor criteria must be analyzed pursuant to the governing statutes related to the industry in which the work was conducted.