17.1.1
Statutory Reference: 8-70-115, C.R.S.
17.1.2
Factors to Consider. In
determining whether a worker is an employee or independent contractor, the
Deputy, Hearing Officer, or Panel considers the nine factors enumerated under
§
8-70-115, C.R.S., as well as any
other relevant factors, including but not limited to:
.1 The relationship between the company for
whom services are performed and the worker.
.2 The totality of the circumstances of the
relationship between the company for whom services are performed and the
worker.
.3 The degree of direction
and control exercised by the company over the worker performing the service,
except the division will not consider direction and control exercised pursuant
to the requirements of any state or federal statute or regulation.
17.1.3
Customarily Engaged
in an Independent Trade, Occupation, Profession, or Business.
Whether a worker is customarily engaged in an independent
trade, occupation, profession or business is dependent upon whether the worker
engages in a business that is separate and distinct from the company for whom
services are performed. Whether a worker could or does perform services for
multiple businesses may be considered in the Division's determination regarding
the worker as an employee or an independent contractor, but it is not solely
dispositive in that determination.
In reaching its determination, the Division considers each
working relationship individually. The Division does not rely on any single
factor, but rather the totality of the circumstances and all relevant factors
in accordance with applicable law. While these factors may represent
consideration as to the status of the working relationship, the circumstances
differ from case to case and additional factors not listed may be considered.
No single set of factors is exclusive. When determining whether an employment
relationship exists under the Colorado Employment Security Act, the Division
considers factors, which may include but are not limited to:
.1 The date the worker's business started and
whether the company required the worker to start the business in order to
perform services for the company.
.2 If the worker markets his or her own
business and the means used for marketing.
.3 If the worker has a business that is
viable beyond the scope of the agreement between the worker and the company for
whom the services are currently being performed, including whether:
.1 The worker is economically independent
from or is substantially dependent upon continued work with the company for
whom services are performed.
.2
There is a permanent or continuous working relationship between the worker and
the company, and any industry-specific conditions relevant to the
permanency.
.4 If the
worker has a business investment such that there is a risk of suffering a loss
on the project.
.5 If the company
for whom services are performed provides tools to the worker, except as allowed
by 8-70-115(1)(c)(VI),
while on the project.
.6 If the
rate and method of payment is negotiated by the parties, is established by the
worker, is established by the company for whom services are performed, or is
established as part of a contract awarded through a bidding process.
.7 If the worker may employ or does employ
others to complete the work.
.8 If
the worker carries his or her own liability insurance, as well as other types
of insurance relevant to sustaining the worker's business.
.9 The number of hours per week that the
worker performs services for the company.
.10 If the worker seeks other work for the
worker's own business in the same field as he or she performs for the
company.
.11 If the worker has the
ability to accept or reject work being offered.
.12 If the service provided by the worker is
an integral part of the company's business.
17.1.4
Worker-Business
Relationship.
.1 The evidence and
circumstances must demonstrate that the worker in question is an independent
contractor.
.2 A worker could still
be determined to be in covered employment, even if the worker signs a contract
or an agreement, if the facts of the relationship establish that an employment
relationship exists.
.3 The
existence of an agreement between the worker and the company for the workers'
compensation coverage is not determinative of the worker-business relationship
for unemployment insurance purposes.
17.1.5
Burden of Proof. The
company for whom services are performed has the burden of establishing, by a
preponderance of the evidence, that a worker is, in fact, free from control and
direction in the performance of the work and is customarily engaged in an
independent trade, occupation, or profession related to that work. A written
document may establish a rebuttable presumption of independent contractor
status only if it includes the applicable factors set forth in §
8-70-115(1)(c),
C.R.S., and the disclosure set forth in §
8-70-115(2),
C.R.S. While an agreement that meets the requirements of §
8-70-115(1) (c)
may shift the burden of proof to the worker or the Division, such an agreement
is not, in itself, conclusive of whether the worker is, in fact, an employee or
an independent contractor.
17.1.6
Compliance Assistance. A business may request that the Division
provide educational information as it relates to proper worker classification.
A business has further opportunity to request a nonbinding advisory opinion in
accordance with Regulation 17.2.
17.1.7.
Industry-Specific
Guidelines. The Division may adopt industry-specific guidance in
collaboration with industry representatives to address unique factors and
situations in that industry. When applicable, the Division considers such
guidance, in addition to the applicable law and the regulations in this Part
XVII when determining whether an individual is an employee or an independent
contractor.
Notes
7 CCR 1101-2-17.1
37
CR 13, July 10, 2014, effective 8/1/2014
39
CR 08, April 25, 2016, effective
5/15/2016
39
CR 22, November 25, 2016, effective
12/15/2016
40
CR 11, June 10, 2017, effective
7/1/2017
40
CR 23, December 10, 2017, effective
12/30/2017
41
CR 08, April 25, 2018, effective
6/3/2018
41
CR 16, August 25, 2018, effective
9/14/2018
42
CR 06, March 25, 2019, effective
4/15/2019
43
CR 08, April 25, 2020, effective
3/20/2020
43
CR 06, March 25, 2020, effective
4/14/2020
43
CR 19, October 10, 2020, effective
10/30/2020
