WPI 50.11.01 Distinguishing Between Agents and Independent Contractors
6 WAPRAC WPI 50.11.01Washington Practice Series TMWashington Pattern Jury Instructions--Civil
6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 50.11.01 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Part VI. Agency and Partnership—Torts
Chapter 50. Agency and Partnership—Torts
WPI 50.11.01 Distinguishing Between Agents and Independent Contractors
You must decide whether(entity A)was an agent or an independent contractor when performing work for(entity B). This decision requires you to determine whether(entity B)controlled, or had the right to control, the details of(entity A)'s performance of the work.
[In deciding control or right to control, you should consider all the evidence bearing on the question, and you may consider the following factors, among others:
(1) the extent to which, by their agreement,(entity B)could exercise control over the details of performance of the work by(entity A);
(2) whether or not(entity A)was engaged in a distinct occupation or business;
(3) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of an employer or by a specialist without supervision;
(4) the skill required in the particular occupation;
(5) whether(entity A)or(entity B)supplied the [tools] [equipment] [instrumentalities] and place of work for the person doing the work;
(6) the length of time for which(entity A)was performing work for(entity B);
(7) the method of payment, whether by the time or by the job;
(8) whether or not the work was part of the regular business of(entity B);
(9) whether or not(entity A)and(entity B)believed they were creating an employment relationship or an independent contractor relationship; and
(10) whether(entity B)was or was not in business.
These factors are of varying importance. All the factors do not need to be present for you to make your decision.]
NOTE ON USE
For the scope of this instruction, see WPI 50.00 (Introduction).
When a person's status as an agent or an independent contractor is in dispute, use this instruction along with WPI 50.01 (Agent and Principal—Definition), and WPI 50.11 (Independent Contractor).
Do not use this instruction to determine application of RCW Chapter 49.46, the Washington Minimum Wage Act. See Comment below.
Fill in the blanks with the appropriate names.
The instruction may be modified to fit the facts of a particular case. Use the bracketed material as appropriate.
COMMENT
This instruction is based on Restatement (Second) of Agency Section 220(2) (1958), which Washington courts have adopted as the test for distinguishing between agents and independent contractors. See Hollingbery v. Dunn, 68 Wn.2d 75, 80–81, 411 P.2d 431 (1966); Massey v. Tube Art Display, Inc., 15 Wn.App. 782, 786–87, 551 P.2d 1387 (1976); see also DeWater v. State, 130 Wn.2d 128, 139–40, 921 P.2d 1059 (1996) (worker hired by foster parent).
The language of WPI 50.11.01 differs slightly from that found in the Restatement (Second) of Agency, which was written for use by lawyers and judges rather than jurors. The WPI Committee removed labels such as “employer,” “workman,” “master,” “servant,” and “principal,” in favor of referring to the appropriate entities by their own names. WPI 50.11.01 also expands the test in Restatement (Second) of Agency section 220(2) (1958) by explaining to jurors that the factors are of varying weight and that they relate back to the crucial issue of control. Massey, 15 Wn.App. at 787 (“All of [the factors in the Restatement test] are of varying importance in determining the type of relationship involved, and with the exception of control, not all the elements need be present.”). See also Chapman v. Black, 49 Wn.App. 94, 99, 741 P.2d 998 (1987).
Rather than list factors to weigh, the Restatement (Third) of Agency (which has not yet been adopted in a published opinion in Washington) defines what an employee is and focuses on the degree of control the principal exercises over the agent. Restatement (Third) of Agency § 7.07 (2006). According to the Restatement (Third) of Agency, an employee is an agent whose principal controls or has the right to control the manner and means of the agent's performance of work, and the fact that work is performed gratuitously does not relieve a principal of liability. Restatement (Third) of Agency § 7.07(3) (2006).
It is error to use this instruction to determine whether a person is an employee or independent contractor for purposes of RCW Chapter 49.46, the Washington Minimum Wage Act (MWA). In Anfinson v. FedEx Ground Package System, Inc., 159 Wn.App. 35, 51–53, 244 P.3d 32 (2010), affirmed 174 Wn.2d 851, 281 P.3d 289 (2012), the court referenced WPI 50.11.01, but held that a different test must be used to distinguish between an employee and an independent contractor for purposes of the MWA. The economic realities test is “whether, as a matter of economic reality, the worker is dependent on the alleged employer” rather than “the common-law test of right to control the worker's performance.” Anfinson, 159 Wn.App. at 53. The court cited with approval a six-factor economic realities test adopted by the Washington Department of Labor and Industries (DLI). Anfinson, 159 Wn.App. at 54.
[Current as of November 2021.]
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