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Slaughter v. Klink8/18/2000
2) criteria which Klink clearly did not meet [R.C. 4123.01(A)(1)(c)(xiii), (xv), and (xvi)]; and 3) criteria which are said to be irrelevant because they can be applied either to independent contractors or to employees [R.C. 4123.01(A)(1)(c)(ii), (v), and (xi)].
No dispute exists concerning the second category, as the trial court agreed that Klink did not meet these criteria. For example, no one claimed that Klink was provided with the "facilities used to perform services." R.C. 4123.01(A)(1)(c)(xv). Specifically, Klink furnished the truck used to haul asphalt. She also realized a profit or loss on services, and was not paid by Barrett for her expenses [items (xiii) and (xvi)]. However, the absence of these factors is irrelevant, since the trial court did not rely on them when making its decision, i.e., the trial court found that Klink met seventeen of twenty criteria, not all twenty.
Concerning the first category, and taking the items in order, we note that R.C. 4123.01(A)(1)(c)(i) focuses on whether " he person is required to comply with instructions from the other contracting party regarding the manner or method of performing services." Slauter contends that Klink did not meet this criterion because Barrett never told her how to haul asphalt; instead, Barrett only gave her general instructions about where to go and what to deliver. We disagree with this characterization of the evidence.
The undisputed facts indicate that Barrett told Klink when to report for work and when she could quit working for the day. Barrett also gave Klink mandatory rules for equipment and hauling. Klink's work routine went as follows. First, Klink's truck was loaded with asphalt at one of five Barrett Asphalt plants. Barrett told Klink which plant to report to in order to pick up the asphalt, and where to deliver the asphalt. When Klink arrived at the designated site, a Barrett job site foreman specified the paver in which the asphalt should be dumped. The foreman also told Klink when to stop her truck, and gave her the signal to dump. After dumping the asphalt, Klink returned to the Barrett asphalt plant to get another load, and continued this process until the Barrett job foreman told her to stop.
We cannot imagine what more would be involved in the method or manner of performing asphalt hauling services, besides these tasks. Furthermore, there are no factual disputes concerning this point. As a result, we find that the trial court correctly included R.C. 4123.01(A)(1)(c)(i) as a factor in favor of Klink's status as an employee.
Our conclusion about the first disputed criterion means that Slauter's remaining arguments are moot. Despite this fact, we will briefly comment on the third category of items. As we said, this group consists of criteria which are allegedly irrelevant because they could apply either to independent contractors or to employees. For example, under R.C. 4123.01(A)(1)(c)(ii), a person must be "required by the other contracting party to have particular training." In this context, Slauter concedes that Klink was required to have certain training for the job. Indeed, Klink's undisputed affidavit indicates that Barrett required her to have particular training, including a commercial driver's license, knowledge of safety procedures, work-related knowledge of how to use her dump truck, and knowledge of how to work a job site at a highway in conjunction with the construction crew. Nonetheless, Slauter says the training requirement is irrelevant because it could relate to independent contractors as well as to employees.
We disagree. First of all, we think the ability to require training is evidence of an employers "right to control." Obviously, both i
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