La. R.S. 23:1044 states that “[a] person rendering service for another in any trades, businesses or occupations covered by this Chapter is presumed to be an employee under this Chapter.” In other words, there is a statutory presumption that one who performs services for another party is an employee, and therefore is entitled to workers’ compensation from the purported employer. Hillman v. Comm-Care, Inc., 01-1140, p. 13, (La.1/15/02), 805 So.2d 1157, 1165.
However, an alleged employer can rebut this presumption by either: (1) establishing that the services were ‘not pursuant to any trade, business, or occupation; or (2), establishing that the individual was performing services but was doing so as an independent contractor.’ Whitlow v. The Shreveport Times, 02-1215, p. 2 (La.App. 3 Cir. 4/23/03), 843 So.2d 665, 667. Regarding the first option, the initial inquiry is whether or not the work constitutes a “business pursuit” of the alleged employer. Hillman, 01-1140, p. 6, 805 So.2d at 1161.
Once an employer successfully rebuts the statutory presumption, the court must then look at whether or not the purposed employer exercised “the right to control” an employee. Id. at 1162. The answer to this question then ultimately determines if employer-employee relationship exists, and consequently, whether or not the employee is entitled to workers’ compensation benefits.
In Wilfred v. A Service Cab Co., Inc., 2014-1121 (La.App. 4 Cir. 5/27/15), the Louisiana Fourth Circuit affirmed the district court’s denial of Emelia Wilfred’s workers’ compensation claim as a beneficiary of her deceased father, a taxi driver for A Service Cab Co.
First, the court found that A Service successfully rebutted the statutory presumption by showing that it did not pay wages to the decedent. Instead, the decedent paid a weekly fee to access A Service’s radio dispatching system and goodwill. Thus, the court found that the decedent’s work was not a “business pursuit” of A Service.
Second, the court found that A Service did not have the ‘right to control’ the decedent based on the following facts: (1) Although the decedent had completed an employment application with A Service, the company’s president testified that the application was mainly used for informational purposes, and not for employment. (2) A Service did not pay any salary to its drivers. Instead, the drivers set their fares, as well as their own hours, accessed the A Service System at their own convenience, and obtained payment directly from customers. (3) There was no formal termination or discipline process between A Service and its drivers. (4) Although A Service provided a training manual to its drivers, the manual’s policies were primarily in place to ensure compliance with the Jefferson Parish Code of Ordinances. Said differently, A Service did not have supervision over its drivers.
Considering these facts, the Fourth Circuit held that A Service did not exercise the necessary control over the decedent’s work to constitute an employment relationship. Thus, Wilfred was not entitled to workers’ compensation benefits.