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Hernandez was paid by check in November and December 2003 in
amounts slightly more or less than $500. Petitioner also paid
Hernandez $7,550 in cash throughout 2003. Petitioner’s payments
to his workers were based on work performed generally, but he
paid his workers the same basic amount weekly even when there was
a lack of work in his waterproofing business in general or a lag
in the amount of work required of them individually. Petitioner
also provided bonus checks to all three workers on December 24,
2003. Petitioner’s workers generally received the same regular
payments regardless of how much money was being taken in by
petitioner from his customers. This lack of an opportunity for
profit or loss on the part of petitioner’s workers is consistent
with an employment relationship.
Petitioner maintained a substantial degree of control over
his workers and the job sites in general. The most reasonable
inference from the evidence is that he would have been able to
hire or fire his workers at will, regardless of whether he ever
exercised that right.
Petitioner’s regular business was the waterproofing industry
with which he and his workers were involved during 2003.
Petitioner’s workers were regularly employed by petitioner in
2003 and worked on petitioner’s many different job sites
throughout the year. Although the workers asserted at trial that
they were independent contractors, their testimony on other
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