.-

WADING THE MURKY WATERSOF

INDEPENDENT CONTRACTOR LAW

Michael Broad, Esq.166 Santa Clara Ave.Oakland, CA 94610(510) 835-5772www.broad-law.commikebroad@broad-law.com

How Six Agencies Determine Independent Contractor-Employee Relationships

EDDI Workers' US Dept. CALaborIRS FIB INS Compo of Labor Comm,

No right to control worker • • • • * •No instructions' *No training * ., •Assistants can do work * .. •Work not hiring firm's primary * * * * * *business

No set work hours *. • •Not a continuing relationship * * *' * * *Control assistants * ..:t: * * *Time to work for others *Determine job location * • * * *Set order of work *No interim reports * ~ #

Paid by job * * * * *Work for many companies * ,if ~

Pay own expenses * '* *Have own tools * * * * *Made significant investment * l' * ~ *Offer services to public *

t, Can make profit or loss * * *,.

Can't be fIred at will * • * * *-c

Aren't paid for partial work.~ *

Distinct occupation or operate * * * *:; separate business~;

Part of industry practice *,..

.~

Skill required * * * *',: Work typically non-supervised * * * *~;

::-.~ Parties believe worker is * * "* * *":" independent contractor-r Who hired the worker~ Amount of initiative, judgment or *

. f~ foresight needed to succeed:~

",1 T "OHlt!- • Most important factor . * Important factor . • Lesser factor

STATE OF CALIFORNIADEPARTMENT OF INDUSTRIAL RELATIONS

WORKERS' COMPENSATION APPEALS BOARD

Applicant,

Case No. SFO 41__

FINDINGS AND ORDERv.

ALMAR TRUCKING COMPANY dbaDE GUZMAN, I

I·Defendantls I

The above entitled matter having been heard by and submitted for decision to

Jacqueline C. Duncan, Workers' Compensation Judge, said Judge now makes her

decision as follows:

FINDINGS OF FACT

1. The stipulations contained in the minutes of the hearing of August 11,

2000 are adopted and incorporated herein as findings of fact.

2. born March 30, 1966, while allegedly employed on

• ••••••• as a truck driver at Oakland, California, claims to have

sustained injury arising out of and in the course of employment to his legs

and head.

3. The applicant, was not an employee of defendant,

ALMAR TRUCKING COMPANY dba DE GUZMAN.

Findings & AwardPage20f2

4. All other issues are moot.

ORDER

IT IS ORDERED that the applicant, _ TAKE NOTHING by reason

of his claim for workers' compensation benefits asserted herein.

JA au LINE C. DUNGANWorkers Compensation Judge

Filed QQd served on:----~-..•...... '.~

On al"artl!s'liste~ on theOffiCi~h::\dd.~~SS~ec3~ ~

By: Oio~arbonel

A Petition for Reconsideration from this decision shall be filed only at theSan Francisco district office of the Workers' Compensation Appeals Board

v. ALMAR TRUCKING dbaDE GUZMAN

Judge: Jacqueline C. Duncan Case No. SFO 429467-

OPINION ON DECISION

The sole issue for decision is whether or not applicant was an employee of defendant at

Employment:

the time ofhis injury.

Under direct examination at trial, the applicant testified to the following effect:

"Prior to working at Almar, he owned his tractor for four to fivemonths ... He worked as a sub-hauler for four to five months before going to workfor Almar Trucking ... He signed a contract when he went to work for thisDefendant. [Defendant's Exhibit A]. He was then referred to Defendant's ExhibitA under Item 1, which mentions independent contractor. Mr. De Guzman did notexplain this to him. At that time, he did not understand what this meant. He didunderstand that he was supposed to furnish his own insurance. Mr. De Guzmandidn't tell him he was supposed to cover himself. The applicant did notunderstand anything about workers' compensation·insurance. [Summary ofEvidence, page 3, August 11, 2000].

"The Applicant maintained his own tractor while working for thisDefendant. ..When asked how the compensation was determined for each' loadhauled for the Defendant, the Applicant testified that under the contract, Item No.3, "carrier agrees to pay contractor the compensation set forth in Appendix Battached hereto and by this reference made a part hereof." The Applicanttestified that he never saw Appendix B.

"He would receive his work assignments by telephone daily. Either Mr.De Guzman or the dispatcher would call him or the Applicant would callin ... [They] would tell him he had to be in Oakland early to haul merchandise toanother place. Specific times were given for delivery. Normally the Applicantpicked up merchandise at the Port of Oakland. When he picked it up, it wasalready on a trailer. He would arrive at the Port, ask for the container number,

. sign in, and follow the instructions given by the Port.[Summary of Evidence, page 4, August 11, 2000].

"His tractor had a decal on it that said "Almar Trucking." There wasnothing on his tractor that indicated . - "

-', z >: •

!..j

, .JOpinion on DecisionPage 2

"He was also referred to a period in February and March of 1999. He didnot work for Defendant then. He was told by Mr. De Guzman or the dispatcherthat there was little work ... after the work slowed down, he did work for othertrucking companies. At some point, the Defendant contacted him again aboutmore work ... it could have been the end of March, 1999. He did work for otherhaulers during that time because there still were not too many jobs coming tohim from Almar Trucking.

"Between the end of March and the date of injury in June 1999, he neverrejected a job from Defendant Almar Trucking for another company.

"He was expected to be present at Saturday meetings on occasion forAlmar Trucking. These meetings occurred every two to three months. Theywereheld at an office in Millbrae ... The Defendant and the Applicant used to talk aboutthe rules of the company, prices, everything related to the Port and theschedules they had to meet. He understood that he had to attend. [End of directexamination, Summary of Evidence, page 6,August 11,2000]. .

In stark contrast, on cross-examination the applicant testified essentially as follows:

"He went to college in Mexico and graduated in 1986 with a degree as anaccountant, technical professional and in administrative inventories andwarehouse.

"In 1986, he began driving a truck for his father, who had his own'company. He worked there until 1990. The truck belonged to his father. Afterworking for his father, he went to work for another company. The truck wasowned by that company. [Summary of Evidence, pages 6 and 7, August 11,2000].

"He became an owner-operator in·1997. He decided to buy his own truckbecause that was his dream. He bought a 1982 Freightliner hauling trailer. It washis dream to manage and own his own trucking business with his own truck.When he bought the Freightliner, he paid for the registration himself. He namedhis company . . He registered his truck with the California.Highway Patrol ... He was assigned a carrier number. He got a cerrier 10 numberwhen he got a letter from the DMV that he had to get an application and carriernumber. He had to pay for it.

"After he got his truck in 1997, he hauled loads for L&E Trucking .. .fromthe Port of Oakland and make deliveries ... He wasn't making enoughmoney ... and started looking for work with another company.

u ..• He had a license to drive a truck from the DMV and he paid all fees inassociation with that.

"At the time he heard of the Defendant's company, he owned his owntruck. Since then until now, he has owned three trucks. He spoke with Mr. DeGuzman first about working at Almar Trucking .... He told Mr. De Guzman that he

Opinion on DecisionPage 3

owned a truck and had a license. [Summary of Evidence; page 7, August 11,2000]. .

"Defendant offered work to him moving containers ...Applicant went to Mr.De Guzman's office ... he gave the Applicant a document to sign (Defendant'sExhibit A). He signed it in Mr. De Guzman's office. At that time, he did notunderstand the contract. He signed it anyway. On the same day, he went to afamily member and had this person read the document to him in Spanish. Hethen understood the agreement. Applicant understood that by signing thedocument, he would not be Mr. De Guzman's employee. After signing thecontract and having it translated for him,he understood that insurance on histruck was his responsibility ...

"... [H]e was told that there would be work for him on a daily basis. Hestarted in July, 1997 and continued working until June of 1999 ... Defendant hadno rules or regulations about which company to use to insure the Applicant'struck. The work involved picking up containers from the Port of Oakland for theDefendant. He would get instructions from the Defendant by telephone and wastold where to go and when to be there. [Summary of Evidence, page 8, August11,2000].

"When the Defendant had a load, there was a time when the Applicanthad to tell Defendant he could not haul the load. At times when offered a job tohaul that other owner-operators refused, no one at the Defendant would tell theApplicant he had to take that container or he would not get any more work.When he picked up the container at the Port of Oakland, no one from theDefendant's office was there.

"The Applicant ... had to put a decal on his truck when he picked up loadsat the Port- of Oakland because there was a man at the Port of Oakland who toldhim he needed that on his truck.

"He received the payment for his work personally. It would depend on thetrip made. Each trip hada different price ... Federal and State taxes were notdeducted from his pay. The Applicant was responsible for paying quarterly taxes .every year .... during the entire time he worked for Defendant he received his paywithout deductions. At some point the rates changed for how much was paid tohim for his services, but this only happened one time ... because the Applicant... told Mr. De Guzman to raise his prices somewhat and that is the reason theprices went up. The Defendant agreed to raise them based on what theApplicant said to him. [Summary of Evidence, page 9, August 11, 2000].

"Heremembered discussing a load that had to be taken to Arcata. It wasoverweight. He remembered negotiating for more money for this delivery.Applicant did get more money for that delivery. The Applicant was never told bythis Defendant that if he did not do the delivery, he wouldn't be able to get morework from this Defendant.

Opinion on DecisionPage 4

"He took containers all over the Bay Area. The Applicant decided whichroute he took to make the deliveries.

" ...Almar Trucking did not impose any rules on the Applicant about usinghis truck for personal use. The Defendant never restricted him insofar as how,when or where he could haul; There were no rules imposed on him regardingpassengers, uniforms, hair length or beards.

"While working in the United States, the Applicant worked as a truckdriver where he received a salary. He made more as an owner-operator than asa salaried truck driver, even taking into account his expenses. When pullingloads for the Defendant, Applicant would pay his fuel expenses, bridge tolls,maps, and maintenance, including oil changes every three months. Applicantpaid al/ of these expenses.

"He never had to call the Defendant to ask if it was okay to work foranother company. [Summary of Evidence, page 10, August 11, 2000].

"Sometimes he worked part of the day for Defendantand the rest ofthedayfor another company when there wasn't enough work with Almar Trucking."[Summary of Evidence, page 11, August 11, 2000].

The Summary of Evidence of the Hearing of October 27, 2000 continues with the cross-

examination of the applicant as well as the examination of the Defendant's witness, Alberto De

Guzman.

" ... Applicant testified that he owned a 1982 Freightliner but that he sold itin September or October 1998 because the motor was acting up and he didn'twant to repair it.

"AImar Trucking had no rules about whether he could sell the 1982Freightliner. After he sold it, he bought a 1982 Kenworth. This was his ownbusiness decision to buy this Kenworth. [Summary of Evidence, page 2, October27,2000].

"In March, before the accident, he purchased a 1985 Kenworth. He paidfor registration ... He stopped drivihgthe 1985 Kenworth just before the accidentand started driving the 1982 Kenworth. His decision as to which truck he wasgoing to drive was entirely his own. Several days before the accident, he sold the1982 Kenworth to a guy in Oakland. He did not need any permission from AlmarTrucking as to whether to sell that truck or drive it. The Applicant drove the 1982Kenworth on the date of the accident, but on the date of the accident, but on thedate of the accident the 1982 Kenworth was owned by the guy in Oakland. Hepaid the man in Oakland a fee so that he could use the truck like a rentalagreement. [Summary of Evidence, page 3, October 27, 2000].

Opinion on DecisionPage 5

"On direct examination, Alberto De Guzman testified that he started hisbusiness in 1986. Before that, he was a sub-hauler owner/operator ... Mr. DeGuzman was a broker for loads that would go to owner/operators. [Summary of.Evidence, page 3, October 27, 2000].

"After he got information [on loads from his customers], he would ... thencall the owner/operator to see whether or not he would take the job. They wouldbe able to refuse. He has contracts with approximately 15 or 20 drivers (sub-haulers). '" [F]irst, they would have to accept the job or not.

"With regard to the deliveries made, he would call the company aboutwhen and where the deliveries would be made and then he would tell this to theowner/operator ... If the load was too big, he would negotiate with the sub-hauler.It would depend on the overweight ... He would call around to see who would bewilling to take it. Almar Trucking was also free to refuse loads as well.

"In June of 1999, he had contracts with seven to tenowner/operators ... They would have to take a drug test. That was required by theBureau of Federal Highways. The owner/operators would pay for thisthemselves. The Applicant in this case did sign a contract. He also needed adriver's license, Class A. This is paid for by the owner/operators, as well asmedical permits. There is a test required by the CHP to make sure that driverscan hear and see. [Summary of Evidence, pages 4 & 5, October 27, 2000].

"The owner/operators pay for the upkeep, maintenance, oil changes, fuelcosts, maps, insurance, registration, and bridge tolls with regard to their tractors.The owner/operator determines the type of vehicle used. Almar Trucking has norequirement or rule concerning the type of vehicle. The owner/operator is paidfor services based on the distance and a percentage asked for thebroker ... There are other factors involved and they can negotiate further. If theowner/operator doesn't like the rate, he can refuse.

"He must keep a log. The owner/operators provide their own logs, whichis required by the CHP. The owner/operators have employees that help them attimes. Almar Trucking has no control if an owner/operator hires employees.

"The drivers do hold meetings. He organizes them once a month.Sometimes there are no meetings for six months ... There is no penalty for notattending. [Summary of Evidence, page 5, October 27,2000].

"He does not withhold any taxes from the money paid to theowner/operators. He does issue 1099's to [them].

"There is a rate sheet for deliveries ... Sometimes a specific town may notbe on the rate sheet. In those cases, he would negotiate with hisowner/operators.

---Opinion on DecisionPage 6

" ... He also discussed insurance with the applicant. The Witness had to .be an additional insured on the certification of liability insurance. This is datedAugust 11, 1999. [Defendant's Exhibit B] .... it is noted that Almar Trucking islisted as an additional insured. He required this of every owner/operator. TheApplicant has to pay for his insurance. This witness has no say in terms of whichcarrier is used for this purpose. [Summary of Evidence, page 6, October 27,2000]. .

"Between January and June of 1999, the Applicant worked for the.Witness, but not every day.

On cross-examination, Mr. De Guzman admitted that " ... the oversizeloads are illegal. There is a higher rate of pay to haul an oversize load in order toaccommodate the driver for penalties or fines that may be imposed if they arecaught. He cannot force an owner/operator to take an overweight load. The ratesheets are for regular loads. These rate sheets set forth the primary places andthe rates for driving ... The farther away the city is, the higher the rate. Headmitted this is to cover the expenses ... and the cost increase. It takes intoaccount the bridge toll, which is factored into the rate. He would negotiate. odd-hour loads ... There was an increase in pay for after-hours available if the drivernegotiated with the Witness. It is a common practice to pay for night trips. It ishigher than the rate sheet and only paid if negotiated. [Summary of Evidence,page 8, October 27, 2000]."

Approximately twelve years ago, the witness had employees drivers. They did not wear

a uniform. He used the rate sheets. These drivers were given assignments in a different way

from the way they are assigned work now. His drivers ... could not refuse loads. They had set

hours for work; They drove his trucks.

The purpose of [having Almar Trucking as a named additional insured on the Applicant's

policy] is so that if a driver damages any equipment at the terminal. Almar Trucking is not

responsible and he is protected from liability.

"The Applicant normally would accept 30% of.all of the jobs offered to himfrom this Witness. Approximately 35% were negotiated for higher rates. TheApplicant would refuse approximately 35% of the jobs offered. [Summary ofEvidence. page 11, October 27, 2000].

"Applicant was recalled to the stand and testified that he spoke with otherhaulers with the same frequency that he spoke with Mr. De Guzman. As apractice. he checked with Almar Trucking first. .. He could not recall whether hereceived more work from Almar Trucking than from other brokers between Marchand June of 1999. [Summary of Evidence, page 12, October 27,2000]."

•• I

Applicant did not do his own scheduling of the pick up and deliveries of loads as this

was set by either the Port of Oakland or the customer. The defendant did not set these times.

Applicant was free to negotiate the price of hauiing loads in the evening, after midnight,

Applicant provided more than his own labor anda driver's license. He owned and operated

three trucks that were a substantial investment on his part.

Applicant worked for other companies while he was also engaged in hauling loads for

this Defendant.

for long distances, for cities unlisted on the rate sheet, and for overweight loads. He was free to

refuse to haul any load without the threat of losing further opportunities to haul for this

defendant. The applicant also set his own routes.

There were no rules imposed upon him by the defendant regarding restrictions on the

use of his trucks. He was completely responsible for all aspects of maintenance of the vehicles

and was free to make any and all decisions in this regard.

No deductions were taken out of Applicant's pay for insurance, maintenance, fuel,

The Labor Code establishes a presumption in favor of finding an employer-employee

bridge tolls, etc. No taxes were deducted.

relationship, unless the relationship is shown to be one of principal-independent contractor

(Labor Code §3357). The alleged employer has the burden of proving the affirmative defense

that the injured worker was an independent contractor (Labor Code §5705(a)).

Labor Code §3353 provides as follows:

"Independent contractor' means any person who renders service for aspecified recompense for a specified result, under the control of his principal asto the result of his work only and not as to the means by which such result isaccomplished. "

JOpinion on DecisionPage 8

It has been held that certain factors should be considered in determining whether an

applicant was employed by the defendant or was an independent contractor. (See Empire Star

Mines Company v. Cal. Emp. Com. (1946),28 Cal 2nd 33; Truck Insurance Exchange v. WCAB

(McCullum and Brown) (Writ Denied) (1979), 444 CCC 278; Laeng v. WCAB (1972),37 CCC

(2) Whether the performing party engaged in a distinctoccupation or business.

185.) These factors include the following:

(1) The right of employer control of the manner and meansof accomplishing the result desired. It is the existence of this right ofcontrol, not its exercise, which is determinative. (See Durae v. lAC(1963),27 cec 240, 245).

(3) The length of time for which services are to beperformed, the possibility of termination, and method of payment.

(4) The skill required in the particular occupation.

Labor Code §2750.5 states in pertinent part as follows:

" ... Proof of independent contractor status includes satisfactory proof ofthese factors:

"(a) That the individual has the right to control and discretion as tothe manner of performance of the contracUorservices in that the result of thework and not the means by which it is accomplished is the primary factorbargained for.

"(b) That the individual is customarily engaged in anindependently established business.

"(c) That the individual's independent contractor status is bonafide and not a subterfuge to avoid employee status. A bona fide independentcontractor status is further evidenced by the presence of cumulative factors suchas substantial investment other than personal services in the business, holdingout to be in business for oneself, bargaining for a contract to complete aspecific project for compensation by project rather than by time, controlover the time and place the work is performed, supplying the tools orinstrumentalities used in the work other than tools and instrumentalitiesnormally and customarily provided by employees, hiring employees,performing work that is not ordinarily in the course of the principal's work,performing work that requires a particular skill, holding a license pursuant tothe Business and Professions Code, the intent by the parties that the work

~o"-" ""0""puuon on eC1SIonPage 9

I

relationship is of an independent contractor status, or that the relationship is notseverable or terminable at will by the principal but gives rise to an action forbreach of contract.

". _." (Emphasis added).

Clearly, applicant had a substantial investment in his Kenworth 1982, Kenworth 1985

and Freightliner 1982. Applicant had the right of control and discretion as to the manner of

performance of the load deliveries in that he could agree to haul or refuse to haul any load,

choose the routes and negotiate with the broker for the fixed price of transporting loads. The

Port of Oakland, rather than the defendant herein, determined the times and dock locations of

the loads for pick-up.

There was not sufficient management and control over the applicant by the defendant

herein.

The case of S.G_Borello & Sons v. Department of Industrial Relations (1989) 54 CCC

80 is not applicable here. The holding of that case cannot be construed to protect ~

who is an educated and experienced owner/operator with skill and expertise in all phases of

hauling, and a license to perform work asa hauler.

Based on my r-eview of the record, I find that the presumption in favor of finding an employee-

employer relationship has been rebutted.

None of the other issues need to be addressed since the applicant failed to meet the

threshold issue of employment. Accordingly, applicant shall take nothing herein and this" "

defendant is not liable for any of the expenses incurred by_ for medical

treatment.

eline C. DuncanCompensation Judge

(Rev.December2009)Department of the TreasuryInternal Revenue Service

Determination of Worker Statusfor Purposes of Federal Employment Taxes

and Income Tax Withholding

Firm's address(includestreet address, apt. or suite no., city, state, and ZIP code)

OMB No. 1545-0004Form SS-8Nameof firm (or person)for whom the worker performedservices Worker's name

Worker's address(includestreet address,apt. or suite no., city, state,and ZIP code)

Trade name Daytimetelephonenumber I Worker's:socialsecu:ritynumber

Telephonenumber (includeareacode) I Firm's emp;oyeridentificationnumber Worker's employeridentificationnumber(if any)

~The information provided on Form SS-8 may be disclosed to the firm, worker, or payer named above to assist the IRS in the determination process.For example, if you are a worker, we may disclose the information you provide on Form SS-8 to the firm or payer named above. The information canonly be disclosed to assist with the determination process. If you provide incomplete information, we may not be able to process your request. SeePrivacy Act and Paperwork Reduction Act Notice on page 5 for more information. If you do not want this information disclosed to other parties,do not file Form SS-8,

Disclosure of Information

Note, If the worker is paid by a firm other than the one listed on this form for these services, enter the name, address, and employer identificationnumber of the payer. ~

Parts I-V, All filers of Form SS-8 must complete all questions in Parts HV. Part V must be completed if the worker provides a service directly tocustomers or is a salesperson. If you cannot answer a question, enter "Unknown" or "Does not apply." If you need more space for a question, attachanother sheet with the part and question number clearly identified.

lall General InformationThis form is being completed by: 0 Finm 0 Worker; for services performed to ,---,,-----,_,- __

(beginningdate) (endingdale)

2 Explain your reason(s) for filing this form (for example, you received a bill from the IRS, you believe you erroneously received a Form 1099 orForm W-2, you are unable to get worker's compensation benefits, or you were audited or are being audited by the IRS). _

3 Total number of workers who performed or are performing the same or similar services _4 How did the worker obtain the job? 0 Application 0 Bid 0 Employment Agency 0 Other (specify)5 Attach copies of all supporting documentation (contracts, invoices, memos, Forms W-2 or Forms 1099-MISC issued or received, IRS closing

agreements, IRS rulings, etc.). In addition, please inform us of any current or past litigation concerning the worker's status. If no income reportingforms (Form 1099-MISC or W-2) were furnished to the worker, enter the amount of income earned for the year(s) at issue $ _

If both Form W-2 and Form 1099-MISC were issued or received, explain Why.

6 Describe the firm's business.

7 Describe the work done by the worker and provide the worker's job title.

8 Explain why you believe the worker is an employee or an independent contractor.

10 If the work is done under a written agreement between the firm and the worker, attach a copy (preferably signed by both parties). Describe theterms and conditions of the work arrangement. ___ _ - - -___ - - - - - - - - - _- - - - - - - - - - - - - - - - - . - - - - - - . - - - -

9 Did the worker perform services for the firm in any capacity before providing the services that are the subject of this determination request?

DYes 0 No 0 N/AIf "Yes," what were the dates of the prior service? - - -- - - -- -- - - - - - - - -- --- ---- ---- - --- ---- - - --- - - - --- - ---- - - - - - - - - - - - - - - - - - - - - - - -. --If "Yes," explain the differences, if any, between the current and prior service. -------_.

For Privacy Act and Paperwork Reduction Act Notice, see page 5_ Cat. No. 16106T Form SS-8 (Rev.12-2009)

Form 55-8 (Rev. 12-2009) Page 2

IHIII Behavioral Control

What specific training and/or instruction is the worker given by the firm?

2 How does the worker receive work assignments? _

3 Who determines the methods by which the assignments are performed? .

4 Who is the worker required to contact if problems or complaints arise and who is responsible for their resolution? .

5 What types of reports are required from the worker? Attach examples.

6 Describe the worker's daily routine such as, schedule, hours, etc.

7 At what location(s) does the worker perform services (e.g., firm's premises, own shop or office, home, customer's location, etc.)? Indicatethe appropriate percentage of time the worker spends in each location, if more than one. _

8 Describe any meetings the worker is required to attend and any penalties for not attending (e.g., sales meetings, monthly meetings, staffmeetings, etc.). _

9 Is the worker required to provide the services personally? 0 Yes 0 No10 If substitutes or helpers are needed, who hires them? _ _

11 If the worker hires the substitutes or helpers, is approval required? 0 Yes 0 NoIf "Yes," by whom? - -- - -- - - - -- - -- - - --- - --__-- _

12 Who pays the substitutes or helpers? . .

13 Is the worker reimbursed if the worker pays the substitutes or helpers? 0 Yes 0 NoIf "Yes," by whom?

IHIIiI Financial Control

List the supplies, equipment, materials, and property provided by each party:The firm _

The worker -- --- - - -- - --- - - - -- - - -- - --_-__- _

Other party _____________ _ - -- - --- ----- - - --- -- --- - -- - -- - -- -- -- -- - - _

2 Does the worker lease equipment? . 0 Yes 0 NoIf "Yes," what are the terms of the lease? (Attach a copy or explanatory statement.) _

3 What expenses are incurred by the worker in the performance of services for the firm?

4 Specify which, if any, expenses are reimbursed by:The firm ____ _ ------ ---------------------- - -- - -- - - ---- ------ _Other party -__- - . --- - - - -- -- - - - - -- -- -- - - - -- - - - - -- -- - - - _

5 Type of pay the worker receives: 0 Salary 0 Commission 0 Hourly Wage 0 Piece Worko Lump Sum 0 Other (specify) __- -_- - -- - - - --- - -- - - --- - - -- - - -- - -_-- _

If type of pay is commission, and the firm guarantees a minimum amount of pay, specify amount $

6 Is the worker allowed a drawing account for advances? . 0 Yes 0 NoIf "Yes," how often? -_- -- _- -- - -- -- - -- -- -- --- - -- - -- - -- - --- - -- --- - - ---- - - - - -_- - - - - - -_- -_--- - - - -- _Specify any restrictions. -_- - - - - - -- -- ---- - -- -- - - - -- - - -- - -- - - - - -- -- - - -- - -- - - -- -- - - -- - -- - - - - -- - -- - --- -- - - - -- - -_-- -- _

7 Whom does the customer pay? .If worker, does the worker pay the total amount to the firm? DYes o No

o FirmIf "No," explain.

o Worker

8 Does the firm carry worker's compensation insurance on the worker? 0 Yes 0 No9 What economic loss or financial risk, if any, can the worker incur beyond the normal loss of salary (e.g., loss or damage of equipment,

material, etc.)? _____ __- - - - - - -- -- -- - - -- - - -- -- - - - --- - - - -- --- -- - - - - - -- -- -- - -- - - - - -- - - - - -- - -- -- - - - -- - - -- -- - --

Form SS-8 (Rev. 12-2009)

Form SS-8 (Rev_12-2009) Page 3

I@'", Relationship of the Worker and Firm

List the benefits available to the worker (e.g., paid vacations, sick pay, pensions, bonuses, paid holidays, personal days, insurancebenefits). . . _._. . _ . _

2 Can the relationship be terminated by either party without incurring liability or penalty? DYes D NoIf "No," explain your answer. .. __. _. . __ _. _

3 Did the worker perform similar services for others during the same time period? DYes D NoIf "Yes," is the worker required to get approval from the firm? . DYes D No

4 Describe any agreements prohibiting competition between the worker and the firm while the worker is performing services or during any laterperiod. Attach any available documentation. ..... .. ..... _. ..... .... .. _... _

5 Is the worker a member of a union? DYes D No

6 What type of advertising, if any, does the worker do (e.g., a business listing in a directory, business cards, etc.)? Provide copies, if applicable.

7 If the worker assembles or processes a product at home, who provides the materials and instructions or pattern? _. . _. _

8 What does the worker do with the finished product (e.g., return it to the firm, provide it to another party, or sell it)?

9 How does the firm represent the worker to its customers (e.g., employee, partner, representative, or contractor)? . __. .. _

10 If the worker no longer performs services for the firm, how did-the relationship end (e.g., worker quit or was fired, job completed, contractended, firm or worker went out of business)? .. .. .. _

liliJjifJ For Service Providers or Salespersons. Complete this part if the worker provided a service directly tocustomers or is a salesperson.

What are the worker's responsibilities in soliciting new customers?

2 Who provides the worker with leads to prospective customers? .. _.... _... .. _. . _.. _

3 Describe any reporting requirements pertaining to the leads.. .. __ _.. __.. _. . _. . .. _.. _._ _

4 What terms and conditions of sale, if any, are required by the firm? __.. __..... _.. . _._. _

5 Are orders submitted to and subject to approval by the firm? DYes D No6 Who determines the worker's territory? .. ______ _ . _. . _. . . _._.. . . __.. _

7 Did the worker pay for the privilege of serving customers on the route or in the territory? . DYes D NoIf "Yes," whom did the worker pay? .. . . __. _

If "Yes," how much did the worker pay? $ _8 Where does the worker sell the product (e.g., in a home, retail establishment, etc.}? • _

9 List the product and/or services distributed by the worker (e.g., meat, vegetables, fruit, bakery products, beverages, or laundry or dry cleaningservices). If more than one type of product and/or service is distributed, specify the principal one. .. _. . .. _

10 Does the worker sell life insurance full time?11 Does the worker sell other types of insurance for the firm?

If "Yes," enter the percentage of the worker's total working time spent in selling other types of insurance12 If the worker solicits orders from wholesalers, retailers, contractors, or operators of hotels, restaurants, or other similar

establishments, enter the percentage of the worker's time spent in the solicitation .13 Is the merchandise purchased by the customers for resale or use in their business operations? .

Describe the merchandise and state whether it is equipment installed on the customers' premises. __ _ _ _

D Yes D NoD Yes D No

%

%DYes D No

Under penalties of perjury, I declare that I have examined this request, including accompanying documents, and to the best of my knowledge and belief,the facts presented are true, correct, and complete.

Sign ~Here r Title ~ Date ~

Type or print name below siqnature.

Form SS-8 (Rev. 12-2009)

~ Employment

EDD g!~~~:r::::~S· ... ~ C I" .tateot a r t o r n ta

EMPLOYMENT DETERMINATION GUIDE

Purpose:

General Information:

This worksheet is to be used by the proprietor of a business to determine whether a worker ismost likely an employee or an independent contractor.

Generally speaking, whether a worker is an employee or an independent contractor dependson the application of the factors contained inthe California common law of employment andstatutory provisions of the California Unemployment Insurance Code.

If a worker is an employee under the common law of employment, the business by which theworker is employed must report the worker's earnings to the Employment DevelopmentDepartment (EDD) and must pay employment taxes on those wages. If the business pays$600 or more in payments to an independent contractor, the business must file a Form 1099-Misc with the Internal Revenue Service (IRS) and must file a Report of IndependentContractor(s) (DE 542) with EDD within 20 days of either making payments totaling $600 ormore, or entering into a contract for $600 or more with an independent contractor in anycalendar year. For more detailed information regarding your independent contractor reportingrequirements, obtain the latest revision of the California Employer's Guide (DE 44).

The basic test for determining whether a worker is an independent contractor or an employeeis whether the principal has the right to direct and control the manner and means by which thework is performed. When the principal has the "right of control," the worker will be anemployee even if the principal never actually exercises the control. If the principal does nothave the right of direction and control, the worker will generally be an independent contractor.

If it is not clear from the face of the relationship whether the worker or the principal has the"right of control," reference is made to a list of secondary factors that are evidence of theexistence or nonexistence of the right of control.

If use of the attached worksheet clearly demonstrates that a worker is an employee, you shouldcontact EDD and arrange to report the worker and pay the relevant taxes. You may also wantto contact the IRS and your workers' compensation insurance carrier to ensure that you are incompliance with federal tax laws and with state workers' compensation statutes.

If after completing the worksheet you are not sure whether the worker is an independentcontractor or employee, you may also contact the Taxpayer Assistance Center for advice bycalling (888) 745-3886 or request a written ruling by completing a Determination ofEmployment Work Status (DE 1870). The DE 1870 is designed to analyze a workingrelationship in detail and serves as the basis for a written determination from EDD onemployment status.

DE 38 Rev. 2 (4-09) (INTERNET) Page 1 of 7 cu

WORKSHEET ON EMPLOYMENT STATUS

Questions 1 - 3 are significant questions. If the answer to any of them is "Yes," it is a strongindication that the worker is an employee, and you have a high probability of risk if you classifythe worker as an independent contractor.

1. Do you instruct or supervise the person while he or sheis working?

Yes _ No __

Independent contractors are free to do jobs in their ownway, using specific methods they choose. A person or firmengages an independent contractor for the job's end result.When a worker is required to follow company proceduremanuals and/or is given specific instructions on how toperform the work, the worker is normally an employee.

2. Can the worker quit or be discharged (fired) at any time? Yes _ No

If you have the right to fire the worker without notice, itindicates that you have the right to control the worker.

Independent contractors are engaged to do specific jobsand cannot be fired before the job is complete unless theyviolate the terms of the contract. They are not free to quitand walk away until the job is complete. For example, if ashoe store owner hires an attorney to review his or herlease, the attorney would get paid only after satisfactorycompletion of the job.

3. Is the work being performed part of your regularbusiness?

Yes _ No __

Work which is a necessary part of the regular trade orbusiness is normally done by employees. For example, asales clerk is selling shoes in a shoe store. A shoe storeowner could not operate without sales clerks to sell shoes.On the other hand, a plumber engaged to fix the pipes inthe bathroom of the store is performing a service on a one-time or occasional basis that is not an essential part of thepurpose of the business enterprise. A certified publicaccountant engaged to prepare tax returns and financialstatements for the business would also be an example ofan independent contractor.

DE 38 Rev. 2 (4-09) (INTERNET) Page 2 of 7

A "No" answer to questions 4 - 6 indicates that the individual is not in a business for himself orherself and would therefore normally be an employee.

4. Does the worker have a separately established Yes Nobusiness?

When individuals hold themselves out to the general publicas available to perform services similar to those performedfor you, it is evidence that the individuals are operatingseparately established businesses and would normally beindependent contractors. Independent contractors are freeto hire employees and assign the work to others in anyway they choose. Independent contractors have theauthority to fire their employees without your knowledge orconsent. Independent contractors can normally advertisetheir services in newspapers and/or publications, yellowpage listings, and/or seek new customers through the useof business cards.

5. Is the worker free to make business decisions which Yes Noaffect his or her ability to profit from the work?

An individual is normally an independent contractor whenhe or she is free to make business decisions which impacthis or her ability to profit or suffer a loss. This involves realeconomic risk, not just the risk of not getting paid. Thesedecisions would normally involve the acquisition, use,and/or disposition of equipment, facilities, and stock in tradewhich are under his or her control. Further examples of theability to make economic business decisions include theamount and type of advertising for the business, the priorityin which assignments are worked, and selection of thetypes and amounts of insurance coverage for the business.

6. Does the individual have a substantial investment which Yes Nowould subject him or her to a financial risk of loss?

Independent contractors furnish the tools, equipment, andsupplies needed to perform the work. Independentcontractors normally have an investment in the itemsneeded to complete their tasks. To the extent necessaryfor the specific type of business, independent contractorsprovide their own business facility.

DE 38 Rev. 2 (4-09) (INTERNET) Page 3 of 7

Questions 7 -13 are additional factors that should be considered. A "Yes" answer to any ofthe questions is an indication the worker may be an employee, but no one factor by itself isdeciding. All factors must be considered and weighed together to determine which type ofrelationship exists. However, the greater the number of "Yes" answers to questions 7 - 13thegreater the likelihood the worker is performing services as an employee.

7. Do you have employees who do the same type of work? Yes No

If the work being done is basically the same as work that isnormally done by your employees, it indicates that theworker is an employee. This applies even if the work isbeing done on a one-time basis. For instance, to handle anextra workload or replace an employee who is on vacation,a worker is hired to fill in on a temporary basis. This workeris a temporary employee, not an independent contractor.

(Note: If you contract with a temporary agency to provideyou with a worker, the worker is normally an employee butmay be an employee of the temporary agency. You maywish to request EDD's Information Sheet: TemporaryServices and Employee Leasing Industries (DE 231F) onthe subject of temporary service and leasing employers.)

8. Do you furnish the tools, equipment, or supplies used to Yes No --perform the work?

Independent business people furnish the tools, equipment,and supplies needed to perform the work. Independentcontractors normally have an investment in the itemsneeded to complete their tasks.

9. Is the work considered unskilled or semi-skilled labor? Yes -- No --

The courts and the California Unemployment InsuranceAppeals Board have held that workers who are consideredunskilled or semi-skilled are the type of workers the law ismeant to protect and are generally employees.

DE 38 Rev. 2 (4-09) (INTERNET) Page 4 of7

10. Do you provide training for the worker? Yes No

In skilled or semi-skilled work, independent contractorsusually do not need training. If training is required to do thetask, it is an indication that the worker is an employee.

11. Is the worker paid a fixed salary, an hourly wage, or Yes Nobased on a piece rate basis?

Independent contractors agree to do a job and bill for theservice performed. Payments to independent contractorsfor labor or services are made upon the completion of theproject or completion of the performance of specificportions of the project.

12. Did the worker previously perform the same or similar Yes Noservices for you as an employee?

If the worker previously performed the same or similarservices for you as an employee, it is an indication that theindividual is still an employee.

13. Does the worker believe that he or she is an employee? Yes No --

Although belief of the parties is not controlling, intent of theparties is a factor to consider when making an employmentor independent contractor determination. When both theworker and principal believe the worker is an independentcontractor, an argument exists to support an independentcontractor relationship between the parties.

DE 38 Rev. 2 (4·09) (INTERNET) Page 5 of 7

~ Employment

EDD DevelopmentDepartment

~f I'f .S tat e 0 C a I or n I a

Determination of Employment Work Statusfor Purposes of State of California Employment Taxes

and Personal Income Tax Withholding

Purpose General Information

This form is to be used by businesses who would like toget a determination as to whether a worker is anemployee for purposes of California UnemploymentInsurance, Employment Training Tax, State DisabilityInsurance*, and Personal Income Tax withholding.

Note

If you require any assistance in the completion of thisform, contact the nearest Employment Tax. Office of theEmployment Development Department (EDD) or call(888) 745-3886. Upon completion, return to:

STATE OF CALIFORNIAEMPLOYMENT DEVELOPMENT DEPARTMENTFACD-Central Operations, MIC 94P.O. Box 826880Sacramento, CA 94280-0001

The EDD may need to contact you if additionalinformation is required.

This form should be completed carefully, and it should becompleted for one individual who is representative of theclass of workers whose status is in question. If a writtendetermination is desired for any other class of workers,complete a separate DE 1870. A written determinationfor any worker will apply to other workers of the sameclass if facts are not different from those of the workerwhose status was ruled upon.

This form is designed to cover many work activities.Some of the questions may not apply to you. Youmust answer questions 1-39 or mark them"UNKNOWN" or "DOES NOT APPLY." Answerquestions 40-79 only if applicable. If additional spaceis needed, please attach another sheet.

PLEASE TYPE OR PRINT ALL INFORMATION CLEARLY

* Includes Paid Family Leave (PFL).

NAME OF FIRM

NAME OF OWNER

ADDRESS OF FIRM (CITY) (STATE) (ZIP CODE)

TELEPHONE NUMBER (INCLUDING AREA CODE)

FIRM'S FEDERAL IDENTIFICATION NUMBER

FIRM'S EDD EMPLOYER ACCOUNT NUMBER

D Individual D Partnership

D Limited Liability Partnership (LLP)

D Corporation

Check the type of firm for which the work relationship is in question:

o Limited Liability Company (LLC)

o Other (specify): _

If the firm is a corporation, is the worker an officer of the corporation? DYes o No

DYes D NoIf the firm is an LLC or LLP, is the worker a member of the LLC or partner in the LLP?

DE 1870 Rev. 12 (2-09) (INTERNET) Page 1 of 7 CU

1. Provide a brief description of the firm's business (e.g., drug store, farmer, and construction):

2. Has this issue been the subject of a prior or current EDD audit and/or a benefit claim investigation or hearing?

DYes 0 No 0 UnknownIf "Yes," please explain and provide any applicable dates:

3. Has any other governmental agency ruled on the status of services performed by the worker or another personperforming the same or similar services? 0 Yes 0 No 0 UnknownIf "Yes," please attach a copy.

4. Total number of workers in this class (Attach names, addresses, telephone numbers, and socialsecurity numbers. If more than 10 workers, attach the information for only 10).

5. This information is about services performed by the worker from to _(Date) (Date)

6. State worker's occupation and title and give a complete description of the services provided: _

7. How did the worker learn of the job (e.g., advertisement in newspapers, and word of mouth): _

8. What were the requirements for the worker's position (e.g., previous experience, and education): _

9. Is the worker still performing services for the firm? DYes 0 No

If "No," explain why and how the worker was terminated: --- _

10. Were the services performed under a written agreement or contract? DYes 0 No

If "Yes," please attach a copy.

11. If the agreement was not in writing, or the terms of the written agreement were not complied with in practice,describe the actual terms and conditions of the arrangement: _

12. Was it agreed or understood that the worker would perform the services personally?If "No," please explain: _

DYes 0 No

DE 1870 Rev. 12 (2-09) (INTERNET) Page 2 of 7 cu

13a. Does the worker have helpers? DYes o No

If "Yes," answer questions 13b. through 13g.If "No," go to question 14.

b. Were the helpers hired by: o Worker 0 The firm

c. Who could discharge the helpers: 0 Worker 0 The firm

d. Who paid the helpers: 0 Worker 0 The firm

e. If the worker paid the helpers, did the firm reimburse the worker?

f. What services do the helpers perform?

g. Are social security (FICA), state disability insurance (SOl), and income taxes withheld from the helpers' wages?

DYes 0 No 0 Unknown

o Unknown

o Unknown

o Unknown

DYes 0 No 0 Unknown

If "Yes," who reports and pays these taxes? .

14a. Was the worker permitted to provide services for others during the same time periods services were performedfor the firm? 0 Yes 0 No 0 Unknown

If "Yes," answer questions 14b. through 141.

If "No" or "Unknown," go to question 15.

b. What percent of the worker's total working time was spent working for others?

c. What percent of the worker's total income was earned from others? _

d. Describe services the worker performed for others: _

e. Did the firm have first call on the worker's time and efforts? DYes 0 No o Unknown

1. Who owned or rented the premises where the services were performed? _

15. List the kind and value of tools, equipment, and facilities furnished by the firm: _

16. List the kind and value of tools, equipment, and facilities furnished by the worker? _

17a. List any expenses connected with the services of the worker: _

b. Who was responsible for paying the expenses? _

c. Was the worker reimbursed by the firm for any of these expenses?

18. Did the worker perform under: o His/her business name

DYes 0 No

o The firm's name

19. Did the worker advertise or maintain a business listing in the telephone directory, a trade journal, etc.?DYes 0 No 0 Unknown

DE 1870 Rev. 12 (2·09) (INTERNET) Page 3 of 7 cu

20a. Did the worker hold himself/herself out to the public as available to provide services of this nature?

DYes D No D Unknown

If "Yes," please explain:--------------------------------

b. Or any other nature?

If "Yes," please explain: _

DYes D No 0 Unknown

21. Did the worker have an office or shop of his/her own? 0 Yes 0 No 0 Unknown

If "Yes," where (e.g., was the office in the worker's home or was it rented office space?): -----'- _

22a. Was a license or certificate required to perform the services? 0 Yes 0 No 0 Unknown

If "Yes," does the firm possess such a valid license or certificate? 0 Yes 0 No

b. Who issued the license or certificate to the firm and/or worker? State type and number for the firm and/or worker:

c. Who paid the worker's license or certificate fee? _

23. Did the firm engage the worker? 0 Full-time D Part-time o Particular Job 0 Indefinite Period

24.

o Ofuer,p~aseexpl~n:-------------------------------

Did the firm require the worker to perform during a scheduled time?

If "Yes," please explain: _

DYes o No

25a. Was the worker given training by the firm?

If "Yes," what kind and how often? _

DYes o No

b. Who paid for the worker's training expenses?26. Was the worker required to follow daily, weekly, etc., routines or schedules established by the firm?

DYes 0 No

If "Yes," give examples:

27. Was the worker given instructions about the way the service was to be performed?

If "Yes," explain the nature of the instructions: _

DYes 0 No

28. Could the firm change the methods used by the worker in performing the services or otherwise direct him/her asto how to perform the work? DYes 0 No

Explain your answer: _

DE 1870 Rev. 12 (2-09) (INTERNET) Page 4 of 7 cu

29a. Does the worker report to the firm or its representatives?

If "Yes," how often? _

b. Forwhatpurpose?---------------------------------

c. In what manner (in person, in writing, by telephone, time record, etc.)?

Attach copies of report forms used in reporting to the firm.

DYes o No

30. Was the worker required to produce a certain amount of work regularly if services were to continue?

DYes 0 No

31. Check the type of pay the applicant received?

o Other, please explain: _

32. Was the worker guaranteed a minimum pay? 0 Yes 0 No33. Was the worker eligible for a pension, bonuses, paid vacations, sick pay, etc.?

If "Yes," explain:

o Salary 0 Commission o Hourly

DYes o No

34. Did the firm carry workers' compensation insurance on the worker? 0 Yes 0 No35. Could the firm discharge the worker at any time? 0 Yes 0 No36. Could the worker quit at any time? 0 Yes 0 No37. Would a liability be incurred if the worker quit or was discharged before the job was complete? 0 Yes 0 No

~"Yes,"pleaseexpl~n:-------------------------- _38. Please explain why you think the worker is/was an employee of the firm or an independent contractor:

39. How did the worker report earnings for income tax purposes? 0 Wageso Unknown

o Self-employment Income

ANSWER QUESTIONS 40 THROUGH 45 ONLY IF THE WORKER IS AN AGENT DRIVER ORCOMMISSION DRIVER (AN AGENT-DRIVER OR COMMISSION DRIVER IS A PERSON WHO

OPERATES HIS/HER OWN TRUCK OR THE TRUCK OF THE FIRM AND SERVES THECUSTOMERS OF THE FIRM AS WELL AS SOLICITING HIS/HER OWN CUSTOMERS)

40. State the products and/or services the driver distributes (for example: bakery products and laundry services):

41. If the driver distributes more than one product or service, which is considered the principal or main product?Explain: _

42. Does the driver serve? 0 Customers or routes designated by the firm 0 His/her own customers 0 Both

43. Was the driver required to perform the services personally? 0 Yes 0 No

44. Were the driver's services part of a continuing relationship with the firm and not in the nature of a single

transaction? 0 Yes 0 No

45. What investment, other than for transportation, does the driver have in the business?

DE 1870 Rev. 12 (2·09) (INTERNET) Page 5 of 7 cu

ANSWER QUESTIONS 46 THROUGH 58 ONLY IF THE WORKER WAS ATRAVELING OR CITY SALESPERSON

46. What type of product is so~d? _

47. To whom are sales made? _

48.

49.

50.

51.

What typical type of business is the buyer in? _

Does the buyer resell the product or use it in its business? _

Did the worker have an exclusive territory? 0 Yes 0 No

Did the firm specify when and how often to work the territory? DYesH~es,·ple~e~plain: _

D No

52. What percent of total sales that the worker made for the firm were made to wholesalers, retailers, contractors, oroperators of hotels, restaurants, or other similar establishments? _

53. What was the percent of working time that the worker spent in selling to organizations other than those specified

in #52, such as manufacturers, schools, churches, and homeowners? _

54.

55.

56.

57.

What was the approximate number of hours worked per day for the firm? _

Was the worker required to perform the services personally? 0 Yes

Was the worker required to forward the orders to the firm? DYes

Were the worker's services part of a continuing relationship with the firm?

o No

o No

DYes D No

58. What investment, other than transportation, does the worker have in the business? _

ANSWER QUESTIONS 59 THROUGH 67 ONLY IF THE INDIVIDUAL WORKED AT HOME

59. Who furnished materials or goods used by the worker? 0 Individual 0 Firm

60. Was the worker furnished a pattern or given instructions to follow in making the product?If "Yes,· please explain: _

DYes 0 No

61. Was the worker required to return the finished product either to the firm or to someone designated by the firm?DYes D No

62. Was the worker required to perform the services personally? 0 Yes 0 No

63. Were the worker's services part of a continuing relationship with the firm? DYes 0 No

64. Is the firm licensed by the California Division of Labor Standards Enforcement? DYes D No D Unknown

65. Does the worker have a valid permit from the California Division of Labor Standards Enforcement?

DYes 0 No 0 Unknown

66. Who bears the cost of material damaged by the worker? D Worker o Firm

67. Explain the nature of any substantial investment in facilities used in connection with performance of the worker's

services. _

DE 1870 Rev. 12 (2-09) (INTERNET) Page 6 of 7 cu

ANSWER QUESTIONS 68 THROUGH 72 ONLY IF THE INDIVIDUAL IS AREAL ESTATE SALESPERSON OR BROKER

68. Does the firm provide advances against unearned commissions, expense accounts, or reimbursements ofexpenses incurred by the worker? 0 Yes 0 NoPlease explain: _

69. Does the firm approve the sales before they are placed in escrow? 0 Yes 0 No

70. Does the worker have any other duties with the firm besides selling real estate? 0 YesIf "Yes," please explain the nature of such duties and the method of payment: "'--- _

o No

71. Does the firm allow the worker to have exclusive listings? DYes 0 No

DYes 0 No72. Does the worker have a valid license to sell real properties?

ANSWER QUESTIONS 73 THROUGH 79 ONLY IF THE FIRM IS ATEMPORARY SERVICES EMPLOYER OR LEASING EMPLOYER

73. Does the firm negotiate with clients or customers for such matters as time, place, type of work, working conditions,quality, and price of the services? 0 Yes 0 No

74. Does the firm determine the assignments or reassignments of the workers, even though workers retain the right torefuse specific assignments? 0 Yes 0 No

75. Does the firm retain the authority to assign or reassign a worker to other clients or customers when a worker isdetermined unacceptable by a specific client or customer? 0 Yes 0 No

76. Does the firm assign or reassign the worker to perform services for a client or customer? 0 Yes 0 No

77. Does the firm set the rate of pay of the worker, whether or not through negotiation? 0 Yes 0 No

78. Does the firm pay the worker from its own account(s)? 0 Yes 0 No

79. Does the firm retain the right to hire and terminate workers? 0 Yes 0 No

I declare that all copies of contracts and all statements submitted are true, correct, and complete to the best ofmy knowledge and belief. If any misrepresentation has been made or facts have been omitted, I understandthat the determination will not be valid and will not be binding upon the Department.

(SIGNATURE)(NAME PRINTED)

(DATE)(TITLE)

(PHONE NUMBER)

DE 1870 Rev. 12 (2-09) (INTERNET) Page 7 of 7 cu