Misclassification of Workers - Proskauer Rose LLP

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vi. the method of payment, whether by the time or by the job;
vii. whether or not the work is a part of regular business of the
employer; and
viii. whether or not the parties believe they are creating the
relation of master and servant.
e. Moreover, in Arruda v. Gold Crest Kitchens, 1994 Fla. App.
LEXIS 8784 (1994), the court stated that the definition of an
employee was amended to include sole proprietors actively
engaged in the construction industry “unless they elect to be
excluded from the definition of employee by filing written notice
of the election with the division.” Id.; see also Fla. Dep't of Fin.
Servs. v. MJ Versaggi Trust, 952 So. 2d 583, 586 (Fla. Dist. Ct.
App. 2d Dist. 2007).
f. In New York, Leone v. United States of America, 910 F.2d 46 (2d
Cir. 1990), cert. denied, 499 U.S. 905, 111 S. Ct. 1103 (1991), sets
forth the factors to be considered to determine whether a person is
an employee or independent contractor:
i. the extent of control which, by the agreement, the master
may exercise over the details of the work;
ii. whether or not the one employed is engaged in a distinct
occupation or business;
iii. the kind of occupation, with reference to whether, in the
locality, the work is usually done under the direction of the
employer or by a specialist without supervision;
iv. the skill required in the particular occupation;
v. whether the employer or workman supplies the
instrumentalities, tools, and a place of work for the person
doing the work; and
vi. the method of payment, whether by the time or by the job.
Id. at 50. 9
g. Courts generally focus on the amount of control a business exerts
over a worker. More specifically, the primary factor to be
considered is the degree of control over the mode or details of the
work. See, e.g., Bynog v. Cipriani Group, Inc., 1 N.Y. 3d 193, 198
(2003); Freedom Labor Contractors of Florida, Inc. v. State of
Florida, Division of Unemployment Compensation, 779 So. 2d 663
9 See also Fraser v. U.S., 490 F.Supp.2d 302, 310 (E.D.N.Y. 2007) (applying the Leone factors to determine if
construction worker is an independent contractor).