(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)
5. The Parties were Operating as Employer/Employee
One of the factors to be evaluated is how the parties saw the nature of the relationship between them. Smythe had no doubt that she was an employee of ABC. The employment of 2006 was substantially the same as the previous employment between 2000 and 2002. (See Fact No. 5) In her opinion, Chan was her immediate superior who could dictate her activities, and if Smythe disobeyed Chan it would constitute insubordination and subject her to termination. (See Fact Nos. 6, 13, 14, 15, 16) She was working full-time (See Fact No. 25, 29) and during both periods of employment had a company credit card, company office, cell phone, laptop, email account and voicemail. (See Fact No. 27) She had transitioned into a long term, full-time position as President and COO, and she was held out as such by Chan. (See Fact No. 20, 21, 25) Certainly in Smythe’s mind she was a long term employee of ABC. (See Fact No. 24, 25)
Although Chan does not describe Smythe as an employee, she admits that Smythe was introduced as President (See Fact No. 20, 21), directed the work of others (See Fact No. 19) and had a role in hiring, firing, and expending corporate funds. (See Fact No. 31)
In truth, Smythe was conducting herself as an employee, just as she had during her first period of employment with ABC, and regardless of Chan’s personal beliefs on the subject, Chan was certainly holding Smythe out as an employee, President and COO, when doing so was in the best interest of ABC. Having done so, it is disingenuous to now claim that the true intent was an independent contractor relationship. (See Part 10 of 14.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.