- 17 - the services provided by the drivers were an essential and normal part of petitioner's regular business. See In re McAtee, supra at 572. This factor supports a finding that the drivers were petitioner's employees. 6. Permanency of the Relationship Generally, the drivers worked for petitioner for a short time. A transitory work relationship may point toward independent contractor status. See Herman v. Express Sixty- Minutes Delivery Serv., Inc., 161 F.3d 299, 305 (5th Cir. 1998). However, if the workers work in the course of the employer's trade or business, that they do not work regularly is not significant. See United States v. Silk, 331 U.S. at 718; see also Avis Rent A Car System v. United States, supra at 430 (transients may be employees); Kelly v. Commissioner, T.C. Memo. 1999-140 (working for a number of employers during a tax year does not necessitate treatment as an independent contractor). In considering the permanency of the relationship, we must also consider petitioner's right to discharge the drivers, and the drivers' right to quit, at any time. Usually, the right to discharge a worker, and the worker's right to quit, at any time indicates an employer-employee relationship. See United States v. W.M. Webb, Inc., 397 U.S. at 193 ("'The right to discharge is also an important factor indicating that the person possessing that right is an employer.'" (quoting sec. 31.3121(d)-1(c)(2),Page: Previous 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Next
Last modified: May 25, 2011