The Unknown

Some clients are OK when you can’t give them a sure answer. Some aren’t.

My client has a business. He started out working for himself. Now others work for him. And he does well.

Ever since he has been in the business, he and the people he worked with considered the people who did the actual work to be independent contractors. That means a lot of things. One thing it means is that my client doesn’t have to buy expensive workers-compensation insurance for his people in case they get injured on the job.

But the State has other ideas. They are demanding that he buy workers-compensation insurance for everyone. That will cost a lot. And it will harm his business and his people in other ways that I won’t get into.

So he asks us: are his people employees or independent contractors? Should he fight this?

Yesterday and today were research days. And the answer is hard. Because the courts look at some twenty-or-so factors to decide that question. And no one factor dominates. Some factors are more important than others, but not always: what matters is the combination of factors in a given case.

So I can’t give the client a yes-or-no answer.

Clients differ in their ability to tolerate the unknown. Some go gladly into the unknown if they think that they are right. Others will take any deal, even a bad deal, just so that they know at an early time what the deal is. A trial lawyer has to know how much a client can tolerate the unknown.