[Code of Federal Regulations]
[Title 29, Volume 3]
[Revised as of July 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR788.16]

[Page 705]
 
                             TITLE 29--LABOR
 
         CHAPTER V--WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR
 
PART 788_FORESTRY OR LOGGING OPERATIONS IN WHICH NOT MORE THAN EIGHT 
EMPLOYEES ARE EMPLOYED--Table of Contents
 
Sec. 788.16  Employment relationship.

    (a) The Supreme Court has made it clear that there is no single rule 
or test for determining whether an individual is an employee or an 
independent contractor, but that the ``total situation controls'' (see 
Rutherford Food Corp. v. McComb, 331 United States 722; United States v. 
Silk, 331 United States 704; Harrison v. Greyvan Lines, 331 United 
States 704; Bartels v. Birmingham, 332 United States 126). In general an 
employee, as distinguished from a person who is engaged in a business of 
his own, is one who ``follows the usual path of an employee'' and is 
dependent on the business which he serves. As an aid in assessing the 
total situation the Court mentioned some of the characteristics of the 
two classifications which should be considered. Among these are: The 
extent to which the services rendered are an integral part of the 
principal's business, the permanency of the relationship, the 
opportunities for profit or loss, the initiative judgment or foresight 
exercised by the one who performs the services, the amount of 
investment, and the degree of control which the principal has in the 
situation. The Court specifically rejected the degree of control 
retained by the principal as the sole criterion to be applied.
    (b) At least in one situation it is possible to be specific: (1) 
Where the sawmill or concentration yard to which the products are 
delivered owns the land or the appropriation rights to the timber or 
other forestry products; (2) the crew boss has no very substantial 
investment in tools or machinery used; and (3) the crew does not 
transfer its relationship as a unit from one sawmill or concentration 
yard to another, the crew boss and the employees working under him will 
be considered employees of the sawmill or concentration yard. Other 
situations, where one or more of these three factors is not present, 
will be considered as they arise on the basis of the criteria mentioned 
in paragraph (a) of this section. Where all of these three criteria are 
present, however, it will make no difference if the crew boss receives 
the entire compensation for the production from the sawmill or 
concentration yard and distributes it in any way he chooses to the crew 
members. Similarly, it will make no difference if the hiring, firing, 
and supervising of the crew members is left in the hands of the crew 
boss. (See Tobin v. LaDuke, 190 F. 2d 977 (C.A. 9); Tobin v. Anthony-
Williams Mfg. Co., 196 F. 2d 547 (C.A. 8).)