Question of the Day: Employee or Independent Contractor?

Question:

Who is responsible for the actions of an individual when a company hires him/her?

Answer:

An employer may be liable for the torts of its employees. However, they will only be actions that fall within the scope of employment. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). Now there is a possibility of successfully winning a suit under the theory of negligent hiring. This claim requires proof that the employer hired an incompetent or unfit employee whom it knew, or by exercise of reasonable care should have known, was incompetent, thereby creating an unreasonable risk of harm to others.

The distinction between employee and independent contractor affects the legal rights and obligations of the employer. This question relies on whether the employer had the right to control the progress, details, and methods of operation of the work.

There is generally a presumption that the person is an employee and not an independent contractor.Hoeschst Celanese Corp. v. Compton, 899 S.W.2d 215, 219 (Tex. App. — Houston [14th Dist.] 1994, writ denied). In this situation, the minimal amount of money lost would negate the possibility of seeing a lawyer who would handle such a case. Perhaps filing a police report and taking the claim to small claims court yourself would be the best solution.

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Categories: Employment Law | Leave a comment

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