Return to Non-CALJIC Offenses – Contents
F 18.46 n1 Medi-Cal Fraud: Distinguishing Employee From Independent Contractor.
One of the issues in a Medi-Cal prosecution per WI 14107.2 may be whether or not the defendant received the payments as an employee as opposed to an independent contractor. The determination of whether the person is an employee or an independent contractor is an affirmative defense. (People v. Palma (95) 40 CA4th 1559, 1569 [40 CR2d 334].) In Palma, the following instruction was given:
“While both an employee and an independent contractor work for another person, there is an important distinction between them. [¶] One is the employee of another person, called the employer, if she is authorized to act for or in place of the employer and is subject to the right of the employer to control her actions. [¶] An independent contractor is one who, in rendering services, exercises an independent employment or occupation, and represents her employer only as to the results of her work, and not as to the means whereby it is to be accomplished. [¶] The most important factor in determining whether one is an employee or independent contractor is whether the employer has the right to control the manner and means of accomplishing the result desired. If the employer has the authority to exercise complete control, whether or not that right is exercised with respect to all details, [an] employer‑employee relationship exists. [¶] Strong evidence in support of an employer‑employee relationship is the right to discharge at will, without cause. [¶] Other factors to be taken into consideration in determining whether a person is an employee or independent contractor are: [¶] (a) Whether or not the one performing services is engaged in a distinct occupation or business; [¶] (b) Whether, in the locality, the kind of occupation or business is one in which the work is usually done under the direction of [an] employer or by a specialist without supervision; [¶] (c) The skill required in the particular occupation or business; [¶] (d) Whether the employer or the worker supplies the instrumentalities, tools and the place of work for the person doing the work; [¶] (e) The length of time for which the services are to be performed; [¶] (f) The method of payment, whether based on time or by the job; [¶] (g) Whether or not the work is part of the regular business of the alleged employer; and [¶] (h) Whether or not the parties believe they are creating [an] employer‑employee relationship or independent contractor.”
