Court of Appeals Defines Which Workers Are Considered “Employees” on a Construction Site

In Boatwright v. Old Dominion Ins. Co., the Court of Appeals found that summary judgment had been properly granted to Old Dominion in a declaratory judgment action in which Old Dominion had denied coverage for injuries occuring to Danny Boatwright while Mr. Boatwright was working on a construction site. Coverage was denied on the basis that Mr. Boatwright was an employee of Old Dominion’s insured, Kan Do Construction, Inc. (“Kan Do”) and injuries to Kan Do’s employees were excluded from coverage. Mr. Boatwright contended that he should not be considered an employee because Kan Do issued him an IRS form 1099 (rather than form W-2); Kan Do considered all of its workers to be “self employees;” and Kan Do did not withhold taxes from their paychecks or provide insurance for the workers.

The Court was more interested, however, in whether Kan Do exercised sufficient control over Mr. Boatwright’s work so that it should be considered his employer. Kan Do provided the necessary tools and material for Mr. Boatwright’s work, other than Mr. Boatwright’s own hammer, measuring tape and tool belt. Mr. Boatwright was required to perform such work as instructed by Kan Do’s foreman, who was his immediate supervisor and who responsible for insuring that the work of Mr. Boatwright and other workers was being performed in the manner desired by Kan Do. Mr. Boatwright himself described his work as: “I just helped [the foreman]. Whatever [the foreman] told me to do, if I knowed how to do it, I would do it; and if I didn’t, he would show me.” Also, Mr. Boatwright testified that he had never operated his own business and workers in Mr. Boatwright’s position were subject to discharge by Kan Do.

Kan Do’s mere claim that its worker was an independent contractor was not conclusive of the worker’s status, according to the Court, and such decisions alone did not create a jury issue on the worker’s status as an employee or independent contractor in the face of undisputed evidence that the employer on a construction site assumes the right to control the time, manner, and method of executing the work. The right to control the time means the employer has assumed the right to control the person’s actual hours of work. The right to control the manner and method means the employer has assumed the right to tell the person how to perform all details of the job, including the tools he should use and the procedures he should follow.

In other words, just calling an employee an independant contractor or even reporting to the IRS that a worker is self employed does not make it so. A court examining the relationship will look beyond these labels and will pay more attention to the amount of control exercised by the contractor over the worker.

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About the Author

Michael Rust graduated from Emory University in 1980 and Emory University School of Law in 1983 where he was Notes and Comments editor of the Emory Law Journal (Law Review). Since that time, he has maintained an active trial practice in the state of Georgia both in State and Federal Courts. Mr. Rust teaches litigation as part of Emory University School of Law’s annual Trial Practice Program. He has received AV rating from Martindale Hubble, the highest rating afforded to lawyers by their peers.