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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 split
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Last modified: May 25, 2011