Hallmarks of employment relations
https://www.fin.gov.on.ca/en/tax/eht/eerelationships.html
The question on the existence of employer-employee relationship has always
caused great trouble and difficulty not only to lawyers and law students but
also to courts[1] which must finally decide on its existence or non-existence. A
decision that it does exist opens a can full of obligations and minimum
requirements that employers must comply with; otherwise, there may be a
violation. On the other hand, a decision that it does not exist slaps the worker
with a reality that s/he cannot enjoy certain rights and privileges given only
to "employees."
Rather than solely relying on the broadly-worded and sometimes-unreliable
four-fold test,[2] it is suggested that the Supreme Court promulgate a
checklist containing certain "factors," "indicators" or "hallmarks" of
employment relationship.[3] Of course, a rule confined in a straight jacket
may result in abuse by employers who wish to avoid certain obligations spawned
by the presence of the relationship and may be taken advantage of by simply
removing an element or two in the relationship. However, guidelines more
specific than the extremely broad "right of control test" should be put in
place, such as the following. For purposes of this discussion, the supposed employer shall be called "payer for services" while the putative employee shall be called "worker."
SELECTION. It is the payer for services which selected the worker. If the worker was provided by a third party in a triangular relationship for the purpose of performing certain tasks and duties or of providing certain services, such worker farmed out may be the employee of that third party.
PAYMENT. The worker receives payment directly from the payer for services, not from a third party. If a third party pays the worker for services benefiting the payer for services, that third party may be the employer.
POWER OF DISMISSAL. The worker may be fired or dismissed by the payer for services. If this power is wielded by a third party, that third party may be the employer. Thus, in a situation in which the payer for services has absolutely no power whatsoever to remove the worker, the former is not the employer. However, mere power to recommend that the worker be replaced is not enough to conclusively prove that the payer for services is the employer, especially if the power to approve such recommendation is in the hands of a third party.
RIGHT OF CONTROL. If the payer for services is not the one exercising control over the worker in means and methods of achieving the end-result desired, the former is not the employer. Mere recommendations or guidelines given by the payer for services to the third party who actually controls the workers is not enough to conclude that there is employment relations between the workers and the payer for services.
TRAINING. If the payer for services trains the worker on how to do the job, this may be viewed as exercise of the right of control and may indicate that they are employer and employee of each other. However, mere provision of training (such as seminar or workshop) does not ipso facto create the employment tie. Such training on how to do the job must have the end in view of making the worker function the way the payer for services wants him/her to function in the trade or business of the payer for services. Please note that a separate discussion is needed on learners and apprentices under the Labor Code.
PERSONAL SERVICE. If the worker cannot hire another person to substitute him to do the job for which s/he is paid by the payer for services, there is a possibility of employer-employee relationship. In an independent contractorship setup, the independent contractor is allowed to have the job performed by another person as long as the result desired is achieved. In employer-employee relationship, direct and physical service by the selected worker is needed, required and expected by the employer.
FULL TIME & ATTENTION. If the worker is required to devote his/her full time and attention to the trade or industry of the payer for services, there is a possibility of employer-employee relationship. By "full time" is meant eight (8) hours a day as the maximum number of hours of work provided under the Labor Code of the Philippines. However, this is not to say that a worker who works only two (2) hours a day is not an employee. Such length of time devoted to the payer of services simply indicates that the worker does not freelance and actually considers as his/her career the engagement with the payer for services. Again, the fact that a worker works for less than eight (8) hours a day does not in any way indicate that s/he is not an employee.
POWER TO HAVE THE JOB RE-DONE. If the payer for services has the power to require the worker to redo the work already done but the worker is still paid the same rate or amount of money, there is a higher chance that there is employer-employee relationship.
EQUIPMENT PROVIDED BY EMPLOYER. If the payer for services is the one that provides the equipment to be used by the worker in performing the latter's tasks and duties, the likelihood of employment relations is higher. A worker who uses his own tools and implements in achieving the end-result desired, having sufficient freedom in the use thereof, is probably not an employee.
PLACE OF WORK. If the worker is required to perform duties and responsibilities in a certain place designated or chosen by the payer of services, and the former has no choice whatsoever in where to do so, there may be employer-employee relationship. In relations other than employment, the worker is usually given more options as to where to perform the task required.
PERFORMANCE MONITORING. If the payer for services evaluates and monitors the performance of the worker and if such evaluation and monitor is more for the benefit of the payer for services than for the worker, there may be employment relationship.
DISCIPLINARY MEASURES. If the worker may be subjected to the disciplinary powers of the payer for services and the latter is not required to report misconduct or any undesirable behavior to a third party, there may be an employer-employee link. This is especially true if the payer for services maintains a human resource management officer to which the worker has to submit reports or explanations.
BUSINESS PROFITS.
[1]
[2]
[3]
[4]