June 9, 2026

The distinction between an employee and an independent contractor could be crucial during a lawsuit.  There are various factors courts will use to determine whether an individual is an employee of an organization or an independent contractor.  The distinction is important, as each worker classification will have a different effect on the liability of an organization. Understanding the distinction will not necessarily help prevent lawsuits, but it will help an organization understand potential liability when a demand letter or legal complaint is received.  For an overview of the potential tax implications or labor law considerations involving worker classification, check out Napa Legal’s article here.  

When a plaintiff brings a lawsuit against an organization for the actions of someone under the organization’s control, the plaintiff will often pursue a claim called “vicarious liability.”  This principle holds one party responsible for the actions of another.  In a typical lawsuit of this kind, the plaintiff will file at least two claims in a complaint: one claim for negligence against a specific individual and one claim for vicarious liability against the organization that hired him.  The organization will be liable only for an employee’s negligent acts that are committed within the scope of his employment.  For example, in Florida¹ an employer generally is not vicariously liable for the torts of an independent contractor.  

In states like Florida, where there may be vicarious liability for employees but not for independent contractors, courts must determine from the outset the proper worker classification of the individual in the lawsuit. Courts will look at the following factors to determine the employment status of an individual:  

• the extent of control the organization may exercise over the details of the work;

• whether the worker is engaged in a distinct occupation or business;

• whether the type of work is usually done under the direction of an employer or by a specialist without supervision;  

• the skill required in the particular occupation;  

• whether the organization or the worker supplies the tools, materials, and place of work;  

• the length of time the person is engaged;  

• the method of payment;  

• whether the work is part of the regular business of the organization;  

• whether the parties believe they are creating the relation of employer and employee; and  

• whether the principal is or is not in business.

A written contract would have some weight in assisting the court to determine whether the individual is an independent contractor, because a contract shows the intent of the parties. The Florida Supreme Court has stated that “courts should initially look to the agreement between the parties, if there is one, and honor that agreement, unless other provisions of the agreement, or the parties’ actual practice, demonstrate that it is not a valid indicator of status.” Essentially, an independent contractor agreement will be determinative of the status of the worker unless a party can show that the actual practice of the parties was that of an employer-employee rather than an employer-independent contractor.  

Once a determination is made that the individual is an employee, courts will then look to determine whether the employee's negligent conduct was within the scope of employment.  Florida courts use a three-prong test. Courts will look to see if:  

• the conduct is of the kind the employee is hired to perform;  

• the conduct occurs substantially within the time and space limits authorized or required by the work to be performed; and  

• the conduct is activated at least in part by a purpose to serve the employer.  

If the employee’s acts occur outside the scope of employment, the employer cannot be held vicariously liable.  

Although the rule in Florida is that there is no vicarious liability for the negligence of an independent contractor, there are three exceptions to this rule. The three exceptions are:  

- negligence in selecting, instructing, or supervising the contractor;  

- non-delegable duties arising out of some relation toward the public or the particular plaintiff; and  

- inherently dangerous work.

An organization can be held liable if the organization was negligent in the selection, instruction, or supervision of the independent contractor.  To prove a claim for negligent selection, it must be shown that the independent contractor chosen was unfit for the work for which he was engaged.  

To prove a claim for negligent instruction or supervision, it must be shown that the organization stepped over the line and took some form of control over the work of the independent contractor.  This could be in supervising a portion of the work or instructing the contractor to do something in a specific way.  A plaintiff, however, must still prove that the contractor did something negligent.  

A non-delegable duty is an obligation that cannot be delegated to another party. In other words, an organization cannot be exempt from liability because it hired another party to fulfill that duty.  An organization can decide to engage an independent contractor as a way of satisfying this duty, but the organization cannot escape liability if something goes wrong.  One example, in the context of a premises liability case, is the non-delegable duty to maintain an organization’s premises in a safe condition. If an organization engages an independent contractor to maintain the premises by performing maintenance or cleaning the premises, the organization can be held liable for the actions of the independent contractor in fulfilling that duty if that contractor is negligent.  Non-delegable duties can also be imposed by a statute or ordinance.  

The last exception is when an organization engages an independent contractor to engage in work where danger is inherent.  This is a smaller exception and one that nonprofit or faith-based organizations are less likely to face.  This exception is usually applicable to cases involving transportation or the use of machinery.  

To protect yourself in the case of a lawsuit, make sure your organization classifies its employees and independent contractors appropriately. Make sure you have proper documentation for each type of worker, as this could be used to support your claim that a worker is an independent contractor rather than an employee. A written contract setting out the terms of an independent contractor agreement is crucial, and more importantly, it is crucial to actually abide by the terms of the agreement in practice.  Treat independent contractors as independent contractors and employees as employees.  If you treat the independent contractor as an employee, a court is likely going to treat the worker as an employee as well, which means your organization can now be held vicariously liable for his actions.  

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