Home Table of Contents

WPI 330.90 Employment Discrimination—Employee Versus Independent Contractor (Minimum Wage Act)

6A WAPRAC WPI 330.90Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 330.90 (7th ed.)

Washington Practice Series TM

Washington Pattern Jury Instructions--Civil

April 2022 Update

Washington State Supreme Court Committee on Jury Instructions

Part XVI. Employment

Chapter 330. Employment Discrimination

WPI 330.90 Employment Discrimination—Employee Versus Independent Contractor (Minimum Wage Act)

You must decide whether(name of plaintiff)was an employee of or an independent contractor of(name of defendant). This decision requires you to determine whether, as a matter of economic reality,(name of plaintiff)is economically dependent upon(name of defendant)or is instead in business for [himself/herself].

In deciding economic dependence, you should consider all of the evidence bearing on the question, including the following factors:

(1) Right to control, and degree of control exercised by(name of defendant)over(name of plaintiff);

(2) the extent of the relative investments of(name of plaintiff)and(name of defendant);

(3) the degree to which(name of plaintiff)'s opportunity for profit or loss is determined by(name of defendant);

(4) the skill and initiative required in performing the job;

(5) the degree of permanence of the working relationship; and

(6) whether the service rendered is an integral part of(name of defendant)'s business.

This list of factors is nonexclusive, and no single factor should control your decision.

NOTE ON USE

Use this instruction where the employer asserts that the plaintiff was an independent contractor for purposes of Washington's Minimum Wage Act, RCW Chapter 49.46.

This instruction should be used with an instruction setting forth the elements of the Minimum Wage Act claim being asserted.

COMMENT

The court's opinion in Anfinson v. FedEx Ground Package Systems, Inc., 174 Wn.2d 851, 869–71, 281 P.3d 289 (2012), contains an extensive discussion about the proper interpretation of “employee” under the Minimum Wage Act. In Anfinson, the court noted that “[f]ederal courts have established competing lists of nonexclusive factors that are relevant to the determination ….” Anfinson, 174 Wn.2d at 869 (citing Hopkins v. Cornerstone Am., 545 F.3d 338, 343 (5th Cir. 2008); Real v. Driscoll Strawberry Assocs., Inc., 603 F.2d 748, 754 (9th Cir. 1979)). The six factors in the instruction above are taken from these cases.

[Current as of January 2021.]

End of Document