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DWD Worker Classification
Civil Rights - Worker Classification
Right to Control
The right to control exercised by the employer is the most important factor of the test to determine if a worker is an employee or a non employee. In Spirides v. Reinhardt, a case decided by the United States Court of Appeals for the District of Columbia, the court held that if an employer has the right to control and direct the work of an individual, not only as to the result to be achieved, but also as to the details by which the result is achieved, an employer/employee relationship is likely to exist.
The following are a list of factors that can assist in the determination of an employer's degree of control over the worker. The list of questions is not exclusive, and no single question is determinative.
- An employee does not control the means and methods of work. Means and methods of work are controlled by the employer.
- An employee is required to comply with the instructions or orders of the employer. Instructions may be given in various forms, such as written policies and procedures. An employer does not generally provide a non employee with instructions on how to perform the work.
- An employee may receive training from the employer. Training can be formal or informal. It can take place in the classroom or on the job. A non employee generally does not receive training from the employer how to perform the work.
- An employee is required to personally perform the services for the employer. An employee is expected to personally do the work assigned by the employer. A non employee is permitted by the employer to hire another person to perform some or all of the work or subcontract the work to another person.
- An employee is required by the employer to perform his or her services at times or in a particular order or sequence established by the employer. A non employee is free to set his or her own hours. A non employee is free to determine in what order or sequence to perform his or her duties.
- An employee is required by the employer to make oral or written reports to the employer on a regular basis. A non employee is not required to submit reports of their work activities to the employer.
If, after applying these factors to the specific employment situation, the responses lead to the conclusion that the employer controls the worker, the worker is in all likelihood an employee.
However, the entirety of the circumstances regarding the relationship between the worker and the employer must be considered. Eleven additional factors must be examined before a final determination is reached.
The department has provided case studies from state and federal court decisions and from LIRC decisions relevant to the factors that make up the "right of control" test. View the case studies.
After completing the analysis of the employer's right to control the worker, go on to the next test for eleven additional factors.