Del. P.J.I. Civ. § 18.6

INDEPENDENT CONTRACTOR – DEFINITION

Under Delaware law, an independent contractor is someone who exercises

independent judgment and agrees to do a piece of work according to [his/her/its]

own methods without being subject to the owner’s control. You must consider

several factors to determine whether a party is an independent contractor. The

strongest test is whether the [contractor, owner, employer, etc.] exercised control

over the work itself. Factors that indicate control include:

(1) The terms of any agreement between [defendant’s name] and [alleged

independent contractor’s name] and the extent of control that [defendant’s name]

may exert over [alleged independent contractor’s name]. A requirement that the

work be performed according to standards and specifications imposed by the owner

is not sufficient to establish control. Instead, you must examine the provisions about

the manner or means by which the work is to be performed.

(2) Whether [alleged independent contractor’s name] is engaged in an

occupation or business distinct from defendant.

(3) Whether at [location of the work done] and its surroundings, the work

to be done under the agreement is usually done under direction of the owner or

contractor, or done by a specialist without supervision.

(4) The independent skill required by [alleged independent contractor’s

name]’s area of work.

(5) Who pays the wages to the individual employees of [alleged

independent contractor’s name].

(6) Who can hire and fire the individual employees.

(7) Who can control individual employees on the job in the manner and

performance of their work. Of all the factors, this is the most important.

(8) Who supplies the tools and place of work to [alleged independent

contractor’s name]’s employees.

(9) Whether [alleged independent contractor’s name] had an opportunity

to profit under the agreement.

(10) The length of the relationship between [alleged independent

contractor’s name] and [defendant’s name].

These are all factors that may determine the extent of control under the

definition of an independent contractor. You must examine these factors and any

others you believe to be relevant within the context that I have just described to you.

No one factor is determinative. It is the total relationship that governs. You must

then decide whether [alleged independent contractor’s name] was an independent

contractor or an [agent/employee] of [defendant’s name].