Ewens and Miller, Inc. - Page 14




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          determined the amount they were paid.  On this record,                      
          petitioner’s control of the bakery workers and cash payroll                 
          workers is consistent with an employer-employee relationship.               
                         b. Route Distributors                                        
               The record does not establish that petitioner controlled to            
          whom the route distributors sold petitioner’s product or where              
          the product was sold.  It is unclear whether petitioner or the              
          route distributor decided how the route distributor was to be               
          compensated (whether on a commission basis or through purchase              
          and resale of the product at a higher price).  Petitioner did not           
          set the route distributors’ hours.  On the record, this factor is           
          not indicative of an employer-employee relationship.                        
                         c. Outside Sales Workers                                     
               The record does not establish that petitioner controlled to            
          whom the outside sales workers marketed petitioner’s product or             
          where they marketed the product.  Outside sales workers could               
          hire substitutes and assistants to perform this work.                       
          Petitioner did not set the outside sales workers’ hours.  On the            
          record, this factor is not indicative of an employer-employee               
          relationship.                                                               
                    2. Investment in Facilities                                       
               The fact that a worker provides his or her own tools                   
          generally indicates independent contractor status.  Breaux &                
          Daigle, Inc. v. United States, supra at 53.                                 






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Last modified: May 25, 2011