Employee vs. Independent Contractor: Common-Law Test in Minnesota

One of the most crucial distinctions in employment and tax law is one made between employees and independent contractors. The applicability of a whole host of labor and tax provisions hinges on how the worker is classified. In Minnesota, most statutory provisions that deal with these issues (including Minnesota Unemployment Insurance) incorporate in one way or another the common-law test factors adopted by the courts to classify workers. In this essay, I will list and explain each of the five factors for determining whether a worker is an employee or an independent contractor.

Common-Law Test

The common-law test consists of five factors. The two most important factors are: the right to control the means and manner of performance and the right to discharge a worker. The presence of one factor is insufficient to find employment relationship if such factor is countered by other factors. Instead, the courts look at the overall relationship between the parties in order to determine whether a master-servant – this is the so-called “totality of circumstances” approach.

Let us review each of the five factors in more detail.

1. The Right to Control the Means and Manner of Performance

This is one of the two most important factors (right to discharge is another) in the test. If the employer has the right to control how a worker performs his job, then the worker is likely to be classified as an employee. In Minnesota, it is important to distinguish between control over “means and manner” versus control over the “end-product.” In the latter case, the employer control the end result of the worker’s product, not the manner in which the worker was able to achieve this result. Therefore, such control does not evince a master-servant relationship, but, rather, is characteristic of an independent contractor status.

2. The Mode of Payment

The most important issue here is whether the worker is paid on a per job basis or on a basis more akin to an employer-employee relationship (such as payment per hour or fixed salary). Payment based on a job evinces an independent contractor relationship, whereas payment per hour indicates an existence of a master-servant contract.

3. Furnishing of Materials and Tools

An employer-employee relationship is more likely where the employer furnishes all materials and tools necessary for the worker to do his job. On the contrary, if the worker supplies all of his tools and materials, then the court will be inclined to rule that this factor indicates that an independent contractor relationship exists.

4. Control of Premises Where Work Is Performed

Where the services are performed on the premises controlled by the employer, a court may adopt a position that this situation implies that employer exercises control over worker (though, there exceptions). On the other hand, if the worker controls the premises where the work is performed , it is usually indicative that the worker enjoys at least some freedom from the employer’s control. It is important to point out, however, that in some professions where the work is necessarily done outside of the employer’s premises, the worker’s control of the place of work loses its importance.

5. Right of Employer to Hire and Discharge

The right to discharge is the other most important factor in determining whether there is an employer-employee relationship. Where a worker may be terminated by the employer with little notice, without cause, or for failure to follow specified rules or methods, and the employer does not incur any liability as a result of such termination, the court is likely to find that a master-servant relationship exists. On the other hand, if the worker cannot be terminated without the employer being liable for damages (assuming the worker is producing according to his contract specifications), the court is more likely to determine that there is an independent contractor relationship between the parties.

The foregoing is a very simplified overview of the common-law test. The actual analysis may be much more complex, especially when applied to a specific set of facts. Remember, the common-law test emphasizes the “totality of circumstances” approach which is necessarily involves a fact-driven analysis.

Codification of the Common-Law Test

It is also important to emphasize that, in most areas of law, the Minnesota legislature codified the common-law test with significant alterations, adding and deleting various factors. For example, Minnesota Unemployment Insurance administrative rules list more than a dozen factors just to determine whether there is a right to control the means and manner of performance. Moreover, the Rules detail eight factors to consider in addition to the modified common-law test.

Often, the common-law test is modified according to specific circumstances of a relevant industry. For example, the specific factors for the construction and trucking industries will vary significantly from the rules that apply to non-emergency medical transportation, even though the common-law test still constitutes the basis for the divergent rules.

Furthermore, one should remember that several different tests may apply to the same situation depending on the government agency that makes the determination of an employment relationship. For example, the IRS applies a different test than the Minnesota Department of Commerce (the “DOR”), and, in turn, the DOR’s rules differ from the factors adopted by the Minnesota Unemployment Insurance. Yet, all three agencies are trying to find an answer to the same question – whether a worker should be classified as an employee or an independent contractor.


In applying the common-law test, whether modified or not, you should hire an attorney familiar with these rules. Lawyers usually have the necessary familiarity with the rules, training in legal research, and experience in dealing with the government agencies.

Sherayzen Law Office is a law firm with a tested experience in the area of worker classification. We can help you make sure that you are in compliance with existing laws and regulations, draft the necessary documents (such as an Independent Contractor Agreement), and defend your interests in the administrative and judicial courts.

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