What’s the Difference Between an ‘Employee’ and a ‘Contractor’ in Virginia?

Caselaw Roundup

Whether a worker is an "employee" or an "independent contractor" might not seem like a big deal for getting the job done, it can mean the difference between workers' compensation coverage and no coverage.

Under the Workers' Compensation Act in Virginia, an "employee" is any person "in the service of another under any contract of hire or apprenticeship, written or implied, whether lawfully or unlawfully employed."

But what do the courts say? Here's a look at how a few cases in the Old Dominion have handled the issue.

Hann v. Times-Dispatch Pub. Co., 166 Va. 102 (1936). Whether the existing status is that of an employee or an independent contractor is governed, not by an express provision of the Workers' Compensation Act, but by common law. No hard and fast rule can be laid down for ascertaining whether the status is one or the other. It must be determined from the facts of the particular case in light of well-settled principles.

Epperson v. DeJarnette, 164 Va. 482 (1935). An "independent contractor" is a person who is employed to do a piece of work without restriction as to the means to be employed, and who employes his own labor and undertakes to do the work according to his own ideas, or in accordance with plans furnished by the person for whom the work is done, to whom the owner looks only for results.

Behrenson v. Whitaker, 10 Va. App. 364 (1990). In determining the worker's relationship to the employer, the court considers sever factors:

(1) Selection and engagement of the employee.

(2) Payment of wages.

(3) Power of dismissal.

(4) Power of control of the employee's action.

McDonald v. Hampton Training Sch. for Nurses, 254 Va. 79 (1997). Of the four factors, the power of control of the employee's action is determinative.

Stover v. Ratliff, 221 Va. 509 (1980). The power of substitution or discharge, the payment of wages, and the circumstances bearing upon the relation are dwelt upon. They, however, are not the ultimate facts, but only those more or less useful in determination whose is the work and where is the power of control.

Richmond Newspapers, Inc. v. Gill, 224 Va. 92 (1982). An employer-employee relationship exists only if the control reserved includes the power to control, not only the result to be accomplished, but also the means and methods by which the result is to be accomplished.

Creative Designs Tattooing Assocs. v. Estate of Parrish, 56 Va. App. 299 (2010). Although the control factor is paramount, additional factors, such as whether there are deductions from compensation, whether the employer or the worker supplies the instrumentalities and tools, and how hours of work are determined, are considerations as well.

Ross v. Schneider, 181 Va. 931 (1943). The measure of compensation is also important, for where it is based on time or piece the workman is usually a servant, and where it is based upon a lump sum for the task, he is usually a contractor.

Uninsured Employer's Fund v. Hughes, No. 1115-24-1 (Va. Ct. App. 07/08/25, unpublished). The worker was an employee whom the employer had the power to control, not an independent contractor because:

(1) The employer hired the worker and assigned her the clients she cared for.

(2) The employer set the worker's hours and communicated the work schedule to the worker through a mobile phone application.

(3) The employer paid the worker hourly and withheld taxes from her paycheck.

(4) The employer required the worker to follow a specific dress code, issued her a badge identifying her association with the employer and required her to wear it, and provided her with gear.

(5) The employer set the minimum standards of care for the clients that had to be accomplished each day.

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