Cal. Code Regs. Tit. 22, div. 1, 1, div. 2.5, ch. 1, tbl. Table of Determination Factors - Product Demonstrators

Current through Register 2024 Notice Reg. No. 44, November 1, 2024

Table - Table of Determination Factors - Product Demonstrators

*EXAMPLES OF:*
*FACTORS*	*EMPLOYEE*	*INDEPENDENT CONTRACTOR*	*WEIGHT*
(c)	EXTENT OF CONTROL
( 1)	Policies or Rules of Conduct	Set by principal or retail establishment and followed by demonstrator.	Requirement that product demonstrators follow safety and security rules in store does not infer employment.	The factors of policy setting, procedures, instructions, supervision, and review carry great weight. The right of the principal or principal's agent to direct and control the services performed, even as to the details
( 2)	Procedures in Product Demonstrating or Marketing	Established by principal or agent and followed by demonstrator.	Demonstrator establishes procedures of work.	of the work, is the primary test. If that right exists, whether or not exercised, an employment relationship exists.
( 3)	Instructions for Conduct of Demonstration	Instructions given by principal or agent to demonstrator regarding site within store, customer relationships, dress code, dates, hours, or product.	Demonstrator uses "professional" judgment to choose site to maximize sales.	To the extent that the principal, or his or her agent, exercises control over the services through rules, procedures, supervision, review of work, etc., it is evidence that the principal has the right to control the services,
( 4)	Supervision on the Job	Demonstrator subject to supervision from store personnel and/or demonstration company personnel ("coordinators").	Details of work not supervised.	and that this right to control is complete and authoritative. This alone will create an employer-employee relationship.
( 5)	Review of Work	Principal or agent reviews the performance of the demonstrator as to how the demonstrator conducted himself or herself on the job.	No reviews of work processes or behavior.
( 6)	Training	Training provided by principal. Attendance is expected. Orientation and/or ongoing new product training. Training on sales pitch. Demonstrator paid for time at training.	Attendance at training is not required. Demonstrators are not paid for time at training. Demonstrators who do not attend specific product training are allowed equal opportunity to promote those products.	Training given by principal that includes instructions about how to do the work, e.g., dress code, product presentation, sales pitch, customer relations, infers that principal or agent has the right to control services and carries high weight.
( 7)	Meetings	Demonstrator expected to attend. Demonstrator's time is paid for. Meetings discuss products, appearance, and conduct.	Attendance not mandatory and non-attendance is viewed without negative consequence. Time at meetings is not paid for or meetings are not held.	The act of holding informational meetings, by itself, is not a strong indication of employment. Like training, if the intent and conduct of the meeting conveys rules, procedures, and instructions to do the work, it infers the demonstrators are not in control of services and not self-employed, and carries high weight.
( 8)	Reports	Reports are required regarding activities, e.g., number of demonstrations, number of people who came by, amount of product demonstrated, hours worked, inventories, customer reactions.	No reports required.	Reporting requirements can be viewed as an extension of the factor "review of work" and would be given medium to high weight depending on the purpose and content of the reports (verbal or written). Reports that are used to monitor demonstrator's performance are considered principal controls. Reports related only to end results are not an indication of employment or independence.
( 9)	Work Schedules	Set by principal, principal's agent, or store management, e.g., dates, times, total hours, breaks, and lunch.	Set by demonstrator.	"When and where" the service is performed is considered an aspect of the "details of the work." These factors would be given medium to high weight. It tends to show
(10)	Location of Work	Principal, or its agent, product demonstrator company, or manufacturer makes arrangements, assigns demonstrator to store.	Demonstrator chooses store, makes arrange ments for demonstration	independence if the demonstrator controls these aspects, and accomplishes an end result for the principal by operating his or her own separate business.
(11)	Principal/Demonstrator Contract	Agreement between demonstrator and principal gives principal or principal's agent control over manner and means of work.	Agreement forbids principal and/or agent from directing worker as to details. Demonstrator is not subject to control of	Terminology used in a written agreement is not conclusive of the relationship, but is evidence of the relationship intended.
principal or agent.	Written agreements do not necessarily depict
(12)	Written Agreement Between Principal and Third Party	Principal acknowledges employment or right of control in agreement with client(s) or labor organization. Written Agreement:	Principal contract with third parties precludes exercise of control by principal or third party. No control of demonstrator is	the actual relationship. The actual practices of the parties in a relationship are more important than the wording of an agreement in making a determination.
* Asserts right of principal to	considered neutral. Written
direct manner and means of	Agreement:	An agreement in which principal expresses
work.	. Clearly shows intent to create	only an interest in an end result and
* Otherwise shows intent to	independent relationship.	abandons the right to control the details of
create employment	. Reserves the demonstrator's	the work (manner and means) is evidence
* Provides detailed rules for	right to control how work is	of independence.
conduct or performance that	done.
principal or principal's agent shall enforce on demonstrator.	Demonstrator must operate in manner described in agreement.	An agreement not followed would have little weight in a determination.
(d)	TERMINATION	Both principal and agent have the right to terminate relationship at will without prior notice, and without any further contractual liability (except for work already performed or to end of shift or workday).	By agreement or practice, principal is required to pay for work not performed, if principal unilaterally terminates relationship other than for cause.	The right to terminate at will is strong evidence of employment. The right to terminate conveys an inherent power of the principal over the demonstrator. With this right, the principal can demand many things of the demonstrator, and the demonstrator, fearing fiscal repercussions, would be obliged to follow such demands.
(e)	ENGAGEMENT IN A DISTINCT BUSINESS	Demonstrator does not operate own business.	Demonstrator operates an independent demonstration business.	If the demonstrator is in a separate business, distinct from that of the principal, and the
* Services performed are regular part of principal's business.	. Contracts with distributors and retail establishments.	services in question are performed in the furtherance of that business, high weight
* Demonstrator does not offer	. Has business license where	would be given toward independence.
services to distributor or retail	required.	Medium weight is given to evidence
establishments as a	. Has phone directory listing.	showing the demonstrator is in a
separate business.	. Advertises	distinct occupation, which would also
* Demonstrator does not	. Registered with government	point to independence.
promote business venture of his	agencies.
or her initiative.	Demonstrator may engage
* Principal or agent may inhibit	substitutes without firm's
use of substitutes or require approval of substitutes.	approval and pays substitutes.
* Principal or agent pays substitutes.
(f)	CUSTOM IN INDUSTRY AND LOCATION	Work traditionally done by employees of manufacturer, distributor or store employees as part of sales activity. Work is usually done under direction of principal or principal's agent. Close supervision is not needed to control work.	Recognized experts or celebrities (guest appearance for special promotion).	This factor, by itself, is not controlling. This is because each determination must stand on its own facts regarding the principal's right to direct and control. Industry custom merely gives an inference or direction to the determination.
(g)	REQUIRED LEVEL OF SKILL OF DEMONSTRATOR	Little skill or experience required. No particular education needed. Anyone with sales talent could do the work.	Demonstrator has an expertise about the product other than demonstration.	Level of skill, by itself, generally does not weigh heavily. However, a high level of technical skill will weigh more heavily when combined with other factors such as separate and distinct business. A low level of technical skill weighs heavily in favor of employment, since as skill level declines the demonstrator has less room to exercise the discretion necessary to independence.
(h)	DURATION OF SERVICES	Demonstrator services are on a continuous basis that are:	Short durations and not recurring.	This factor, by itself, is not controlling. It tends to reflect whether a person is employed
* Recurring in nature.	or self-employed. Contractors
* At regular intervals at regular times.	usually perform work on a job basis for shorter and for pre-designated
* At irregular intervals.	periods of time. Employment is usually of open-ended duration.
(i)	WHETHER PRINCIPAL OR WORKER SUPPLIES INSTRUMENTALITIES, TOOLS, AND PLACE OF WORK	Provided or paid for by principal, e.g., trade name, office, facilities, store space, tables, counters, appliances, booths, advertising, merchandise, inventory, or communication.	Provided or paid for by demonstrator without reimbursement. Demonstrator provides tools or equipment with significant financial investment.	The weight given to whether the principal or demonstrator supplies the instrumentalities or tools will vary depending on the value of such items. As the value of the instrumentalities and tools increases heavier weight is given to this factor. The place
Hand tools commonly used by demonstrator (i.e., card tables, skillets, mixers, portable ovens, etc.) or an automobile for transportation do not infer employment or independence.	of work is always provided by the principal or its agent, so this factor is given little weight in demonstrator determinations.
(j)	METHOD OF PAYMENT	Based on time worked. Payment	Payment based on end result:	This factor, by itself, as with written
by shift, hour, orpiece rate. Payment at regular intervals	. Commission based on sales volume,	agreements, is not controlling. It is only an indication of the type of relationship.
and in regular amounts. Payment by salary. Benefits provided.	. Commission based on volume of product demonstrated.	This is because many times it is difficult to determine if payment is by the
Compensation set by principal. Expenses reimbursed. Billings and collections by principal.	No benefits provided. Demonstrator purchases product demonstrated and/or sold, and compensation based on gross sales less cost of merchandise.	job or commission versus some method based on time worked or a salary.
(k)	BELIEF OF PARTIES	. Both the parties believe the relationship is employment.	All parties agree that relationship is one of independence.	This factor, by itself, is not controlling. The belief of parties only infers a relationship intended.
(l)	PART OF REGULAR BUSINESS OF PRINCIPAL	Services are an integral or normal part of the principal or agent's regular business activities. Activities are central to producing the products or delivering the services provided by the business.	Demonstrator assures entrepreneurial risk and investment. Services only supportive of business activity/purpose and are not integral part of business.	This factor is given medium to high weight. The presumption is that if the service is an integral part (regular/normal/central) of the principal's business, the principal, by business necessity, needs to maintain control over the service.