Under California common law, “[t]he determination of employee or independent-contractor status is one of fact if dependent upon the resolution of disputed evidence or inferences….” S.G. Borello & Sons, Inc. v. Department of Industrial Relations, 48 Cal. 3d 341, 349 (1989) The question is one of law if the evidence is undisputed. Id. “The label placed by the parties on their relationship is not dispositive, and subterfuges are not countenanced.” Id.
California decisions applying statutes enacted for the protection of employees “uniformly declare that ‘[t]he principal test of an employment relationship is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired….’” Borello, 48 Cal. 3d at 350. But courts “have long recognized that the ‘control’ test, applied rigidly and in isolation, is often of little use in evaluating the infinite variety of service arrangements.” Id. So, while the right to control work details “is the ‘most important’ or ‘most significant’ consideration, the authorities also endorse several ‘secondary’ indicia of the nature of a service relationship.” Id. Thus, “‘the right to discharge at will, without cause,’ ” is “ ‘[strong] evidence in support of an employment relationship….’” Id. Additional factors include “(a) whether the one performing services is engaged in a distinct occupation or business; (b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (c) the skill required in the particular occupation; (d) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work; (e) the length of time for which the services are to be performed; (f) the method of payment, whether by the time or by the job; (g) whether or not the work is a part of the regular business of the principal; and (h) whether or not the parties believe they are creating the relationship of employer-employee.” Id. at 351.