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Who Is an Independent Contractor? (cont'd)


Independent Contractors

The status of independent contractor contrasts with the usual role of an employee as a "servant" rather than with the much broader role as an agent. Here, the word "servant" does not exclusively connote a person rendering manual labor, but one who performs continuous service for another and who is subject to control by the other. The word indicates the closeness of the relation between the one giving and the one receiving the service, rather than the nature of the service or the importance of the one giving it. Thus, chief executive officers of major corporations are normally servants, and their corporation master, differing only in the dignity and the importance of their positions from those working under them.

In the master-servant relation employers ("masters") control the physical conduct of employees ("servants") during the performance of an undertaking. These words, "master" and "servant," came into use in the common law several hundred years ago, when most employees were bound to their employers. Today, a master is a principal who employs an agent to perform service in its affairs and controls, or has the right to control, his physical conduct in the performance of the service. A servant is an agent employed by a master to perform service in his affairs and whose physical conduct in the performance of the service is controlled, or subject to the right of control, by the master. Thus, all masters are principals, and all servants are agents employed by masters; all such employees are subject to the fiduciary and common law duties described in Parts I and II of this series.

An independent contractor, on the other hand, is a person who contracts with another to do something for him but whose physical conduct of the performance of the undertaking is not controlled by the other, nor subject to the other's right to control. However, the control or right to control the physical conduct of the person providing the service needed to establish the master-servant relation may be very attenuated. In some types of employment, there may even be an understanding that the employer shall not exercise control over the servant. For example, a cook is regarded as a servant although it is understood that the employer will exercise no control of the cooking.

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