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dispute in this case, namely, that the status of a police officer
changes from off-duty to on-duty if, while off-duty, the officer
observes criminal conduct and engages in a law enforcement
activity in response to such conduct. This change in status
occurs, however, regardless of whether the police officer is
engaged in providing police-type services to a third party, or is
merely off-duty and happens to be in an area where and when his
or her services are required. This change in status has no
bearing on whether a Texas police officer is prohibited as a
matter of law from earning and receiving compensation as an
independent contractor.
Petitioners also argue, as a matter of fact, that under the
common-law principles relevant to such determinations, the level
of control that the Department exerted over the services that
petitioner provided to the companies renders him an employee of
the Department with respect to such services.5
5The relevant factors in determining the characterization of
an employment relationship include: (1) The degree of control
exercised by the principal over the details of the work; (2) the
payee's investment in facilities; (3) the payee's opportunity for
profit or loss; (4) the permanency of the relationship between
the parties; (5) the principal's right of discharge; (6) whether
the work performed is an integral part of the principal's
business; (7) what relationship the parties believe they are
creating; and (8) whether nonmonetary benefits are involved.
NLRB v. United Ins. Co., 390 U.S. 254, 258-259 (1968); Simpson v.
Commissioner, 64 T.C. 974, 984-985 (1975); Feivor v.
Commissioner, T.C. Memo. 1995-107. No one factor is
determinative; rather all the incidents of the relationship must
be assessed and weighed. NLRB v. United Ins. Co., supra at 258.
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