Personal Injury Lawyer Blog
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)
The employer’s control is the most important factor, and the others are to be considered “secondary elements.” Toyota, supra, 220 Cal.App.3d at 875; Isenberg v. California Emp. Stab. Com., (1947) 30 Cal.2d 34, 39. “Moreover, it is not the control actually exercised, but that which may be exercised which is determinative.” Toyota, supra, 220 Cal.App.3d at 875.
In applying the factors to the evidence of Ms. Smythe’s employment status, the inescapable conclusion is that she was operating as an employee rather than an independent contractor at the time of the accident that injured plaintiff John Gibbs.
1. Employer Right of Control
Smythe had worked at ABC previously as an employee between January 2000 and July 2002. (See Fact No. 1) She returned to work ABC at in April 2007, and was terminated in July 2007. (See Fact No. 2) During the initial period of employment between 2000 and 2002, she reported directly to CEO Victoria Chan until the end of that period, when David Grillo took over. (See Fact No. 3) Victoria Chan controlled and directed her work for that two-and-half-year period. (See Fact No. 4) Upon her return to the company in April 2007, her relationship was similar; Victoria Chan told her what to do, and Chan could terminate her at will. (See Fact No. 5, 14)
With regard to the conference that Smythe was attending in northern California at the time of the accident, she had been instructed by Chan to attend the ITC conference in Marin. (See Fact No. 6) It would have been an issue if Smythe had declined to attend the conference. (See Fact No. 7) She was told what her objectives were while at the conference. (See Fact No. 8) She was told to travel to the conference, stay at the company house, attend the conference, and take a team to represent ABC. (See Fact No. 9) She did what she was told. (See Fact No. 10) By her second stint with ABC, she had a lot of experience, but Chan was still in charge of her work. (See Fact No. 11)
The Board of Directors of ABC had control of her work and future plans could not move forward without Board approval. (See Fact No. 12) In summary, both times that Smythe worked for ABC were similar in that her supervisor had a right to control how she did her work and provided her with an office, an email account, voice mail, cell phone, mailing address, and had a right to fire her without cause. (See Fact No. 13, 14, 27) Although she was a professional, hier work was controlled and directed by Victoria Chan, the CEO, who had a right to direct her work and control how she performed that work. She met with Chan on a weekly basis to discuss the work she was doing for ABC. (See Fact No. 15) (See Part 7 of 14.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.