Dentist Was Independent Contractor Not Employee

By Joanne Deschenaux February 23, 2018

A dentist was not an employee of the practice where he worked but instead was an independent contractor, the California Court of Appeal held. The trial court was therefore correct in ruling against the dentist in his wage and hour suit, the appellate court concluded.

Pedram Soleimani filed an administrative claim with the state labor commissioner against Sherbank Aziza Dental for unpaid wages, liquidated damages and waiting time penalties, as authorized by California law. The dental practice claimed that Soleimani was an independent contractor, not an employee, and so was not entitled to the remedies he sought. Soleimani prevailed on his claims at the administrative level, but the dental practice appealed and was granted a trial in state superior court.

After the trial, the court issued its decision in favor of the dental practice, and Soleimani appealed that decision.

[SHRM members-only HR Q&A: How do I know if an individual is considered an employee or independent contractor in California?]

The appellate court first noted that, in distinguishing between employment and independent contractor relationships in California, lower courts look to the California Supreme Court's decision in S.G. Borello & Sons Inc. v. Department of Industrial Relations (1989) (48 Cal.3d 341).

Under Borello, the principal test of an employment relationship is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the desired result, the court said.

The Borello court endorsed secondary factors that should be considered in addition to the issue of control. These include:

  • Whether the person performing services is engaged in a distinct occupation or business.
  • The skill required in the particular occupation.
  • Whether the company or the worker supplies the tools and the place of work for the person doing the work.
  • The length of time the services are performed.
  • The method of payment, whether by time or by the job.
  • Whether the work is a part of the regular business of the possible employer.
  • Whether the parties believe they are in an employer-employee relationship.

Additionally, the Borello court said, these "individual factors cannot be applied mechanically as separate tests; they are intertwined and their weight depends often on particular combinations."

The appellate court found that the trial court properly applied the Borello factors in this case. It then found that there was substantial evidence to support the trial court's conclusion that Soleimani was an independent contractor and not an employee. This evidence included the following:

  • Soleimani obtained his own dental license and had his own malpractice insurance.
  • He signed an independent contractor agreement.
  • His paychecks had no tax deductions for employee-related taxes.
  • He was not supervised at the dental office.
  • He received no training at the office.
  • He decided how long to spend with a patient, what professional services needed to be performed and how the work was to be done.
  • He received no vacation time, holiday pay or sick leave.
  • He had earned incentive compensation based on the volume of work he performed.

Thus, the court affirmed the trial court's judgment in favor of the dental practice.

Soleimani v. Sherbank Azizi Dental Inc., Calif. Ct. App., No. B278844 (Feb. 15, 2018).

Professional Pointer: To determine whether a worker is an employee or an independent contractor, the nature of the relationship must be closely examined. Many factors are relevant, and no one factor is controlling by itself.

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.

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