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            © Daniel B. Wolfberg
South El Monte California Attorney At Law
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Santa Monica, CA 90403-5664
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Other Borello factors are in accord. Varisco engaged in skilled work, in a distinct occupation. He supplied his own clothes and equipment. He received no benefits. The parties clearly believed that they were entering into an independent contractor agreement. Varisco argues that some of the factors indicate that he was an employee.3 For instance, based on an undisputed fact to that effect, he argues that construction inspection was part of Gateway's regular business. He also argues that the fact that he was paid by the hour, not the project, indicates that he was an employee. An hourly rate traditionally indicated an employment relationship (Mattoon v. Steiff (1954) 123 Cal.App.2d 512, Washko v. Stewart (1937) 20 Cal.App.2d 347) but independent contractors are now commonly paid on that basis. (National Elevator Services, Inc. v. Department of Industrial Relations (1982) 136 Cal.App.3d 131, 140.) At any rate, even if one or two of the factors suggested in Borello do suggest an employment relationship, when all the factors are weighed and considered as a whole (Borello, supra, 48 Cal.3d at p. 351), Varisco was not an employee. The principle issue is control, and Gateway had none. Varisco's main argument is that an at-will clause in the January 30 letter agreement means that he was an employee. The clause reads "The employee or [Gateway] may terminate with or without cause and with or without notice employment At-Will at any time. Nothing in this agreement or in any document statement shall limit the right to terminate At-Will employment.