( 1)

Policies or Rules of Conduct

Set by principal or retail establishment and followed by demonstrator.

Requirement that product demonstrators follow safety and security rules in store does not infer employment.

( 2)

Procedures in Product Demonstrating or Marketing

Established by principal or agent and followed by demonstrator.

Demonstrator establishes procedures of work.

( 3)

Instructions for Conduct of Demonstration

Instructions given by principal or agent to demonstrator regarding site within store, customer relationships, dress code, dates, hours, or product.

Demonstrator uses “professional” judgment to choose site to maximize sales.

( 4)

Supervision on the Job

Demonstrator subject to supervision from store personnel and/or demonstration company personnel (“coordinators”).

Details of work not supervised.

( 5)

Review of Work

Principal or agent reviews the performance of the demonstrator as to how the demonstrator conducted himself or herself on the job.

No reviews of work processes or behavior.

( 6)

Training

Training provided by principal. Attendance is expected. Orientation and/or ongoing new product training. Training on sales pitch. Demonstrator paid for time at training.

Attendance at training is not required. Demonstrators are not paid for time at training. Demonstrators who do not attend specific product training are allowed equal opportunity to promote those products.

Training given by principal that includes instructions about how to do the work, e.g., dress code, product presentation, sales pitch, customer relations, infers that principal or agent has the right to control services and carries high weight.

( 7)

Meetings

Demonstrator expected to attend. Demonstrator's time is paid for. Meetings discuss products, appearance, and conduct.

Attendance not mandatory and non-attendance is viewed without negative consequence. Time at meetings is not paid for or meetings are not held.

The act of holding informational meetings, by itself, is not a strong indication of employment. Like training, if the intent and conduct of the meeting conveys rules, procedures, and instructions to do the work, it infers the demonstrators are not in control of services and not self-employed, and carries high weight.

( 8)

Reports

Reports are required regarding activities, e.g., number of demonstrations, number of people who came by, amount of product demonstrated, hours worked, inventories, customer reactions.

No reports required.

Reporting requirements can be viewed as an extension of the factor “review of work” and would be given medium to high weight depending on the purpose and content of the reports (verbal or written). Reports that are used to monitor demonstrator's performance are considered principal controls. Reports related only to end results are not an indication of employment or independence.

( 9)

Work Schedules

Set by principal, principal's agent, or store management, e.g., dates, times, total hours, breaks, and lunch.

Set by demonstrator.

(10)

Location of Work

Principal, or its agent, product demonstrator company, or manufacturer makes arrangements, assigns demonstrator to store.

Demonstrator chooses store, makes arrange ments for demonstration

independence if the demonstrator controls these aspects, and accomplishes an end result for the principal by operating his or her own separate business.

principal or agent.

principal or principal's agent shall enforce on demonstrator.

Demonstrator must operate in manner described in agreement.

An agreement not followed would have little weight in a determination.

(d)

TERMINATION

Both principal and agent have the right to terminate relationship at will without prior notice, and without any further contractual liability (except for work already performed or to end of shift or workday).

By agreement or practice, principal is required to pay for work not performed, if principal unilaterally terminates relationship other than for cause.

The right to terminate at will is strong evidence of employment. The right to terminate conveys an inherent power of the principal over the demonstrator. With this right, the principal can demand many things of the demonstrator, and the demonstrator, fearing fiscal repercussions, would be obliged to follow such demands.

• Principal or agent pays substitutes.

(f)

CUSTOM IN INDUSTRY AND LOCATION

Work traditionally done by employees of manufacturer, distributor or store employees as part of sales activity. Work is usually done under direction of principal or principal's agent. Close supervision is not needed to control work.

Recognized experts or celebrities (guest appearance for special promotion).

This factor, by itself, is not controlling. This is because each determination must stand on its own facts regarding the principal's right to direct and control. Industry custom merely gives an inference or direction to the determination.

(g)

REQUIRED LEVEL OF SKILL OF DEMONSTRATOR

Little skill or experience required. No particular education needed. Anyone with sales talent could do the work.

Demonstrator has an expertise about the product other than demonstration.

Level of skill, by itself, generally does not weigh heavily. However, a high level of technical skill will weigh more heavily when combined with other factors such as separate and distinct business. A low level of technical skill weighs heavily in favor of employment, since as skill level declines the demonstrator has less room to exercise the discretion necessary to independence.

• At irregular intervals.

periods of time. Employment is usually of open-ended duration.

Hand tools commonly used by demonstrator (i.e., card tables, skillets, mixers, portable ovens, etc.) or an automobile for transportation do not infer employment or independence.

of work is always provided by the principal or its agent, so this factor is given little weight in demonstrator determinations.

Compensation set by principal. Expenses reimbursed. Billings and collections by principal.

No benefits provided. Demonstrator purchases product demonstrated and/or sold, and compensation based on gross sales less cost of merchandise.

job or commission versus some method based on time worked or a salary.

(k)

BELIEF OF PARTIES

• Both the parties believe the relationship is employment.

All parties agree that relationship is one of independence.

This factor, by itself, is not controlling. The belief of parties only infers a relationship intended.

(l)

PART OF REGULAR BUSINESS OF PRINCIPAL

Services are an integral or normal part of the principal or agent's regular business activities. Activities are central to producing the products or delivering the services provided by the business.

Demonstrator assures entrepreneurial risk and investment. Services only supportive of business activity/purpose and are not integral part of business.

This factor is given medium to high weight. The presumption is that if the service is an integral part (regular/normal/central) of the principal's business, the principal, by business necessity, needs to maintain control over the service.