Under Ohio law, it is unlawful for an employer to discriminate against an employee on the basis of that person’s race, color, religion, sex, military status, national origin, disability, age, or ancestry. Ohio’s employment discrimination statutes generally only protect – not surprisingly –employees. Therefore, in a litigation setting, it becomes necessary to determine whether the party hired to perform the work by the hiring party is an employer or an independent contractor. This is a crucial inquiry because, if a hired party is found to be an independent contractor, and not an employee, then he or she is not entitled to the protections afforded by Ohio’s employment discrimination statutes. Both the Ohio and U.S. Supreme Courts have addressed the issue of whether a person is an employee or an independent contractor.
According to the Supreme Court of Ohio in Gillum v. Indus. Comm., the key issue in determining whether a person is an employee or an independent contractor is whether the employer has reserved the right to control the manner or means of doing the work: “[I]f 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 relationship is thereby created.”
The Supreme Court of Ohio has held that factors to be considered in determining who has the right of control includes indicia such as “who controls the details and quality of the work; who controls the hours worked; who selects the materials, tools and personnel used; who selects the routes traveled; the length of employment; the method of payment; and any pertinent agreements or contracts.”
In Nationwide Mut. Ins. Co. v. Darden, the U.S. Supreme Court also considered the issue of whether a person is an employee or an independent contractor. In Nationwide, the Supreme Court adopted a common law agency test for determining who qualifies as an employee. The factors the Supreme Court urged lower courts to consider in making such a determination include: (1) the hiring party’s right to control the manner and means by which the product is accomplished; (2) the skill required to perform the work; (3) the source of the instrumentalities and tools; (4) the location of the work; (5) the duration of the relationship between the parties; (6) whether the hiring party has the tight to assign additional projects to the hired party; (7) the extent of the hired party’s discretion of when and how long to work; (8) the method of payment; (9) the hired party’s role in hiring and paying assistants; (10) whether the work is part of the regular business of the hiring party; (11) whether the hiring party is a business; (12) the provision of employee benefits; and (13) tax treatment of the hired party.
If you are unsure as to whether you are an employee or an independent contractor, or as to whether Ohio’s discrimination statutes apply to you, call the attorneys at The Spitz Law Firm today for a free and confidential initial consultation.
If you even think that your employment rights have been violated or that you might need an employment lawyer, then call the right attorney to schedule a free and confidential consultation at (216) 271-3742. The Spitz Law Firm is dedicated to protecting employees’ rights and solving employment disputes.
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