AMATEUR ATHLETIC OFFICIALS
This information sheet was prepared to clarify the Employee or Independent Contractor? common law factors of employment as they apply to amateur athletic officials. Depending on the method Section 4304-1 of Title 22, California Code of by which amateur athletic officials perform their Regulations (CCR), provides that to determine whether services and the circumstances of their relationship, one performs services for another as an employee, these workers may perform services as employees or the most important factor is the right of the principal independent contractors. to control the manner and means of accomplishing a desired result, whether or not that right is exercised. What Is an Amateur Athletic Official? Section 4304-10 of Title 22, CCR, provides standards to be used when applying the common law rules An “amateur athletic official” is an individual who specifically to amateur athletic officials and is intended supervises an amateur sporting contest, such as an to make clearer those circumstances under which umpire, referee, judge, scorekeeper, or timekeeper. an amateur official is an independent contractor or employee. Amateur sports organizations may also employ: customer service representatives, instructors, coaches, “Control” shall not be established by factors provided program directors, program coordinators, officers, for under rules promulgated by third parties or by secretaries, and bookkeepers. circumstances not directly related to the amateur athletic official’s duties. One example of such a What Is a Principal? third-party rule would be a rules-based protest to a league commissioner or an umpire in chief (an A “principal” is an individual or entity for whom or for individual responsible for resolving such a protest) which the amateur athletic official performs services. in a baseball league. Another example would be a Amateur athletic officials generally have one or more municipality’s decision to shut down a baseball field to of the following principals: prevent damage to the facility itself rather than to usurp an umpire’s discretion as to whether or not the field 1. The school or team sponsoring the contest. was playable.
2. The league (or entity sponsoring the league) Amateur Athletic Officials Determination Factors sponsoring the contest. If it is not clear whether the amateur athletic official’s 3. The governing body of the organization sponsoring actions are subject to direct control during a contest, the contest. then this factor and the following factors would be used to determine if the amateur athletic officials are 4. The sports officials association or other similar employees or independent contractors. entity that has contracted to provide one or more officials for the contest. The following Table of Determination Factors – Amateur Athletic Officials lists evidence that indicates 5. Any other individual or entity sponsoring an either “employee” or “independent contractor” status. amateur sporting contest or providing officials for Each factor has been given a weight based on the an amateur sporting contest. importance or significance of the factor. If a grouping of heavily weighted factors indicates employment, the An “amateur sporting contest” means any athletic individual would normally be considered an employee. competition in which the participants are not When the factors appear to be evenly distributed, professional athletes, including interscholastic and the law has said the relationship is also employment. intercollegiate events in which the participants are If a grouping of heavily weighted factors indicates students and amateur contests in which the participants independence, the individual would be considered an are children and adults. independent contractor for purposes of the California Unemployment Insurance Code.
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A formal ruling may be requested by submitting a For further assistance regarding the employment Determination of Employment Work Status for Purposes status of amateur athletic officials, please contact the of State of California Employment Taxes and Personal Taxpayer Assistance Center at 888-745-3886 or visit the Income Tax Withholding (DE 1870). To obtain this form, nearest Employment Tax Office listed in the California visit the Employment Development Department (EDD) Employer’s Guide (DE 44) and on the EDD website at website at www.edd.ca.gov/Office_Locator/. www.edd.ca.gov/pdf_pub_ctr/de1870.pdf or contact the Taxpayer Assistance Center at 888-745-3886. For more information regarding common law rules For more information on the ruling request process, on employment and what constitutes wages, refer refer to Information Sheet: Employment Work Status to Information Sheet: Employment (DE 231) and Determination (DE 231ES). Information Sheet: Wages (DE 231A). For additional information regarding financing methods and special exclusions for nonprofits and public entities, refer to Information Sheet: Nonprofit and/or Public Entities (DE 231NP ). Tables indicating the taxes to which certain types of employment are subject can be found in Information Sheet: Types of Employment (DE 231TE).
The EDD is an equal opportunity employer/program. Auxiliary aids and services are available upon request to individuals with disabilities. Requests for services, aids, and/or alternate formats need to be made by calling 888-745-3886 (voice) or TTY 800-547-9565.
This information sheet is provided as a public service and is intended to provide nontechnical assistance. Every attempt has been made to provide information that is consistent with the appropriate statutes, rules, and administrative and court decisions. Any information that is inconsistent with the law, regulations, and administrative and court decisions is not binding on either the Employment Development Department or the taxpayer. Any information provided is not intended to be legal, accounting, tax, investment, or other professional advice.
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FACTORS EVIDENCE OF WEIGHT
EMPLOYEE INDEPENDENT CONTRACTOR
(1) Whether or The worker does not The worker operates an If the worker has established a not the one operate his or her own independent business separate business, distinct from that performing business. Work performed separate from that of the of the principal, and the work is the services is a direct and essential part principal. The worker performed in the furtherance of that is engaged in of the principal’s business. advertises under own separate business, great weight would a separately The worker does not trade name, has a business be given toward independence. If the established advertise his or her services license where or when worker does not have an established occupation or to the general public as required, and has an separate business, distinct from business. a separate business. The investment in facilities or that of the principal, and the work worker performs services equipment. The worker is performed in the furtherance under the principal’s trade provides his or her own of the principal’s business, great name. Worker wears insurance coverage or pays weight would be given towards an uniform with principal’s for the cost of coverage employment relationship. name on it. The worker is under principal’s insurance paid by principal whether plan. Worker arranges for or not customer pays. someone to take his or her The principal provides place if unable to perform insurance coverage. The duties. worker is prohibited from providing services to others while performing services for principal.
The principal is responsible The worker is not to arrange for a substitute. prohibited by the principal The worker does not have from providing services for an entrepreneurial risk of others when performing loss. services for the principal. The worker assumes an entrepreneurial risk of loss (i.e., worker does not receive payment for services from the principal if the customer does not pay).
Control and employment An amateur athletic official is indicated if a worker is may be independent if prohibited by the principal he or she has the right to from working for others. work for several different principals at the same time. This would show the lack of a continuous relationship with one principal and be an indication of independence.
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FACTORS EVIDENCE OF WEIGHT
EMPLOYEE INDEPENDENT CONTRACTOR
(2) Custom in the Principals treat their Workers typically operate This factor by itself is not controlling. industry and workers as employees. their own separately This is because each determination location. established businesses. must stand on its own facts regarding the principal’s right to direct and control. Industry custom merely implies an inference or direction to the determination.
(3) Required level Little skill or experience In order to fulfill his or Level of skill, by itself, generally of skill of the is required. No particular her work obligation, the does not weigh heavily toward worker. education is needed. worker masters a code or independence. However, a high level set of rules. In addition, the of skill will weigh more heavily when worker may obtain ongoing combined with other factors such as information regarding separate and distinct business. If an amendments to the code or amateur athletic official obtains a set of rules and amendments high level of skill on his or her own, to the techniques of this weighs toward independence; administering the code or however, if the acquirement of this set of rules. skill is required by the principal, this is a neutral factor. A low level of skill weighs in favor of employment, since as skill level declines, the worker has less room to exercise the discretion necessary for independence.
(4) Whether the The principal provides The worker pays for his or This factor is not controlling but principal or the worker with the her own equipment. only gives an inference or direction the worker equipment necessary to to the determination. If items are supplies the perform the services. provided by the principal, this instrumentalities, indicates employment. If items are tools, and place provided by the worker, this indicates of work. independence. Providing of sports facility is a neutral factor.
(5) Duration of The worker performs The worker provides services This factor, by itself, is not controlling. services. services on a continuous on a sporadic, per-job basis. Independent contractors usually basis. Services may be on a perform work on a job basis for “per-contest” basis. shorter, designated periods of time. Employment is usually of open-ended duration. A long series of short-term assignments from a single principal will tend to show continuity and employment. However, where the worker has a separately established business and retains the right to simultaneously accept assignments from other principals, the acceptance of a long series of short-term assignments from a single principal would not indicate employment.
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FACTORS EVIDENCE OF WEIGHT
EMPLOYEE INDEPENDENT CONTRACTOR
(6) Method of Payment is by time period The fees are negotiated per This factor, by itself, is not controlling. payment, (such as hour, week, month) contest. The worker may It is only an indication of the type of whether by the or piece rate. Payment is receive advance payments relationship. This is because a worker time, a piece made at regular intervals. for services provided they may be paid solely by the contest, but rate, or the job. Compensation is set by the are agreed upon based on the controls are sufficient to create an principal. The principal the contract between the employer-employee relationship. provides the worker worker and the principal. advance payment furnished The worker pays for his for services. Benefits are or her own expenses. The furnished at no cost to the principal furnishes no worker. benefits to the worker.
If rate of pay is determined If rate of pay is determined This factor, by itself, is not controlling, by the principal, this by the worker or is but it is important in that it indicates control and negotiated between the indicates control or lack of control employment. worker and the principal, of the worker by the principal. In this indicates the principal’s situations where the athletic official’s lack of control and compensation is determined by local independence on the part custom, this factor is neutral. of the worker.
(7) Whether or not The worker’s services are The worker’s services This factor is given medium weight. the worker’s an integral or normal part are only supportive of The presumption is that if the worker’s services of the principal’s business the business activities services are an integral (regular, are part of activities. Activities are and/or purpose and are normal, central) part of the principal’s the regular central to delivering the not an integral part of business, then the principal by business of the services provided by the the principal’s business business necessity needs to maintain principal. business. activities. control over the worker’s services.
(8) Whether or Both parties believe the Both parties agree that This factor, by itself, is not controlling. not the parties relationship is one of the relationship is one of The belief of parties only implies the believe they employment. independence. intent of the relationship. are creating the relationship of employer and employee.
(9) Principal Agreement between the Agreement forbids principal Terminology used in written and worker principal and the worker from directing the worker agreement is not conclusive of contract. gives the principal the as to details (manner the relationship but is evidence of right to direct and control and means) of the work. the relationship intended. Written the manner and means Agreement contemplates the agreements may not be the same as of the work. Agreement worker is an independent the actual relationship of the parties. contemplates that the contractor. The actual relationship is what is worker will perform the important. services personally.
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FACTORS EVIDENCE OF WEIGHT
EMPLOYEE INDEPENDENT CONTRACTOR
(10) Termination. Both the principal and the By agreement or practice, The right to terminate conveys an worker have the right to the principal is required to inherent power of the principal over terminate the relationship at pay for work not performed, the worker. The right to terminate will without prior notice or if the principal unilaterally at will, without cause, is strong without cause and without terminates the relationship, evidence of employment, whether any further contractual other than for cause. The terminated during or after a game. liability (during or after the contract makes the worker Termination during a contest may be game). liable for damages if the stronger evidence of employment as worker fails to complete the this shows clear-cut control, because terms of the contract. the amateur athletic official may have been terminated for making a
decision that the principal did not agree with. If a worker is not called back to officiate a contest, this is still termination, but not as obvious or as strong an evidence of employment as termination during a game. However, if a worker is not called back to officiate a contest but is still officiating similar contests (such as an official on one school’s scratch list who works other scholastic games), the official is not considered terminated.
(11) Required Principal requires worker to Worker is not required to This factor is not controlling but does to accept accept assignments. accept assignments. Worker carry weight. If the worker is required assignments. may give principal a list of to accept assignments, this is an the dates that he or she is indicator of employment. If the worker available. is not required to accept assignments, this indicates independence.
(12) Training. Training is provided or Training is not provided. The act of conducting training to required by the principal. Attendance at training is not give the worker an orientation of the The principal instructs the required. Worker is not paid principal’s business and products, worker on details of the for time at training. Worker by itself, is not a strong indication of job, on the policies, rules or pays for training course. employment. It shall be considered procedures of conduct, and a neutral factor when an amateur so on. Instruction may be in athletic official receives training a “clinic.” from the principal which is used solely to disseminate information on rules, rules interpretations, and officiating mechanics promulgated by recognized state, national, and international authorities. However, if by intent or fact the purpose of the training is to convey instructions about specific rules used only by this principal, it implies that the principal has the right to control the services. This would carry great weight.
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FACTORS EVIDENCE OF WEIGHT
EMPLOYEE INDEPENDENT CONTRACTOR
(13) Meetings. Principal conducts meetings Attendance at meetings The act of holding informational and worker’s attendance conducted by the meetings, by itself, is not a strong is required or expected. principal is not mandatory indication of employment. However, The worker’s time is paid and nonattendance is if by intent or fact the purpose of the for. Meetings may include viewed without negative meeting is to convey policies, rules, training. consequence. Time at training, procedures, or instructions, meetings is not paid for. it implies that the workers are not in control of their services and are not independent. This would carry great weight.
(14) Reports. Principal requires worker The principal does not Reporting requirements are an to submit reports regarding require the worker to extension of the factor “supervision” complaints or problems. complete any reports. and would be given medium to great Worker may be required weight depending on the purpose to submit reports on player and content of the reports (verbal ejections. or written). Reports that are used to monitor the worker’s performance are considered controls by the principal over the manner and means of the work. Health and safety reports are given no weight.
(15) Dress Code. The principal requires the The worker is not required This factor, by itself, is not controlling worker to wear a specific to wear a specific uniform. and must be looked at with other uniform bearing the name factors to determine employment. and logo of the principal. This factor will not be indicative of employment where the official wears the uniform, and any specific marking or indicators on the uniform, which are customary for athletic officials in his or her sport, provided that the official is responsible for every aspect of purchasing, maintaining, and the upkeep of said uniform.
(16) Policies, rules, Policies, rules, and Worker performs his or The setting of policies, rules, or or procedures procedures set by the her services independent procedures, and instructions by the of conduct. principal as evidenced of any policies, rules, or principal is an indication of direction by written or verbal procedures of conduct from and control over the worker’s services instructions necessary as the principal when calling and carries great weight. In order to to the details (manner and a contest. Does not include indicate control these would have to means) or methods to call a rules from outside entities be specific policies, rules, procedures, contest. like the American Softball and instructions used only by the Association. principal rather than any rule book used by a specific sport, such as the ASA Rule Book used by the American Softball Association.
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FACTORS EVIDENCE OF WEIGHT
EMPLOYEE INDEPENDENT CONTRACTOR
(17) Worker can be If a worker can be fined If the principal does not fine This factor, by itself, is not controlling fined. by the principal, this the worker it would only and must be looked at with other indicates control and thus indicate independence if it factors to determine employment. employment. were part of an agreement that the principal could not fine the worker. A sports association may fine a worker and still show evidence of independence where the workers have the right to elect the officers of the association who are responsible for levying fines, where the workers are members of the association, and where the workers have the right to participate in votes as to whether to have fines and to set the policy on the amount of fines.
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