Generally, the term “employee” is used to refer to a person who works for another in exchange for compensation. When determining if a person is the employee for the other it is important to consider if person is subject to the other’s control. Employers typically exercise control over the employee by directing when and where the employee shall begin work, regulate the hours of the work, how time and attention is allocated to a certain aspect of work, the physical method or means of achieving an end result, as well as control over the type of appliances, tools, and resources are used to perform the work. For employer-employee relationships, the right of control is paramount, and the right of control must extend from the means and method to the end result accomplished. Further, when evaluating employer-employee relationships, it is the existence rather than the exercise of the employer’s right to control the employee, which determines the nature of the relationship.
As an alternative to employee, “independent contractor” refers to a person in the pursuit of an independent business, who undertakes work for another person or business. In this role, independent contractors use their own judgment concerning the method and means to accomplish the work, without submitting themselves to the full control and direction of another. When determining the amount of control the employer retains in an independent contractor relationship, the Texas courts consider five factors, including: (1) the independent nature of the worker’s business; (2) the worker’s obligation to furnish the necessary tools, supplies, and materials to perform the job; (3) the worker’s right to control the progress of the work, excluding the final result; (4) the duration for which the worker is hired by the employer; and (5) whether the work is paid for their time or by task or milestone.