- 12 - provides petitioner with pension and health benefits, paid sick leave, paid funeral leave, paid holidays and vacations, and severance pay benefits. Finally, respondent points out that IBC provides petitioner with a Form W-2 (as opposed to a Form 1099- NEC) and that IBC pays petitioner’s Social Security and unemployment taxes. Petitioner counters that he is an agent, as opposed to an employee, because he must work as many hours as it takes to finish the job. He also points out that he is paid a base salary and commissions on sales, as opposed to an hourly rate. Finally, he argues that IBC’s issuance of a Form W-2 is not dispositive of the characterization of his relationship with IBC. On the basis of the terms of the union agreement between IBC and Local 952 and the other aspects of petitioner’s relationship with IBC, the control factor indicates an employer-employee relationship. Next we consider respondent’s contention that IBC had the right to discharge petitioner for certain specified infractions. We do not find this aspect to be significant because IBC and/or petitioner would each have the option to terminate their relationship irrespective of whether it was one of employment or agency. Under the union agreement, petitioner could be discharged by IBC if: (1) He worked on his route after his daily checkout, on holidays or Sundays, or on his day off; (2) he splitPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Next
Last modified: May 25, 2011