Case Lesson: Va. 'Independent Contractor' vs. 'Employee'


Lynchburg, VA (–Whether a worker is an independent contractor or an employee typically comes down to the amount of control an employer exercises or has the ability to exercise over an employee.

In Dunn v. Cityscape, LLC, No. 0358-22-3 (Va. Ct. App. 02/07/23), the worker had his own business, specializing in cabinet and hardware installation, woodworking, and trim. 

An employee of a subcontractor hired the worker to perform construction work at a jobsite. The subcontractor worked for a general contractor, Cityscape. Cityscape employees, including the job site superintendent worked at the jobsite as well.

The worker sustained a right hip injury on July 22, 2019, while performing construction work at the jobsite. He sought workers’ compensation benefits for the injury. He argued, in part, that he was an employee of Cityscape for purposes of Virginia’s workers’ compensation statute because:

  • He was paid an hourly wage;
  • The jobsite superintendent dictated when he worked; and
  • He had to submit his hours to the job site superintendent to get paid.

The court stated that there is no "hard and fast rule" for deciding whether a worker is an employee versus an independent contractor. However, it cited the following four factors that Virginia courts consider in making that determination:

  1. Selection and engagement of worker
  2. Payment of worker's wages
  3. Power to dismiss worker
  4. Power of control over worker's actions  

The fourth factor, power of control over the worker’s actions, the court explained, includes:

  • The power to specify the result to be attained; and 
  • The power to control the means and methods by which the result is to be accomplished.

The court also observed that in Virginia, it’s the potential power to control the worker, not the actual exercise of that control, that is important. If the party for whom the work is to be done has the power to direct the means and methods by which the other does the work, then the latter person is an employee, the court stated.

Here, the court found that the worker was not an employee. In doing so, it relied, in part, on the following:

  • The general contractor’s employees, including the superintendent, did not closely supervise the worker.
  • Although the superintendent and one other employee coordinated the project and oversaw the worker’s efforts, neither of them dictated the means and methods by which the worker accomplished the tasks assigned to him.
  • The general contractor did not provide instruction to the worker as to how to complete his job duties.
  • Although the general contractor supplied some materials necessary for the worker to perform his duties, the worker supplied his own tools. T
  • There was also evidence that he was willing to buy more tools on his own as necessary.
  • The worker held himself out to the public as a business owner performing the same work independently as the work he did for the general contractor. His business had a tax identification number, workers' compensation insurance, a business license, business cards, and an online presence. 
  • At no point did Cityscape restrict the worker from working on other jobs.

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