Mr. Sample will counter a few of these arguments with his own interpretation of the factors along with other relevant factors regarding the idea that Kary is an independent contractor instead. Sample will argue for the factor of “the extent of any training provided by the employer. ” (Id. at 710, 845 P. 2d at 706). He will argue this factor because there is not any proper training that is really provided by him. All he does is explain the rules to new hires and provide a list of suggestions that may help them in their sales.
He will argue that this is not really training and that the vendors are selling the peanuts according to their own methods, which is a qualification of an independent contractor. He will counter Kary’s factor of a continuing relationship between the employee and employer with his argument that he fired her. There is no continuing relationship after this point and he could also argue that one summer is a short amount of time in the grand scheme of things. Sample will also counter the factor about working hours. Yes, he may have to set up hours if there are not enough sign-ups for each game but that is not the way it is supposed to be.
The vendors are supposed to make their own schedule. This is another link to having an independent contractor working by his own methods. The next relevant factor that Sample would bring up would be “the requirement of full-time work. ” (Id. at 710, 845 P. 2d at 706). An employer-employee relationship would be much more likely to have a requirement of full-time work. Since there is no requirement for full-time work, if Kary did work full-time, this would be a feature of being an independent contractor.
Sample could also counter with the factor that deals with “the ability of the worker to incur a profit or a loss. Id. at 710, 845 P. 2d at 706). He could argue this factor because overall there is a good chance of the peanut vendors being able to earn more with commission and tips and potential bonuses then they would earn from their biweekly paycheck. Since the ability to earn a profit or a loss is based more on the individual worker’s methods, this would lean towards the worker being an independent contractor rather than an employee.
One final factor that Sample could argue is “whether the worker could work for more than one firm at a time. ” (Id. at 710, 845 P. at 706). Since there was no requirement from Mr. Sample about how much a vendor could or could not work, it can be assumed that Kary could have worked for another firm or area of work. If Kary did work somewhere else, that would count towards her being an independent contractor. Mr. Sample does have some solid arguments that could be made. However, Kary’s employer-employee relationship with Mr. Sample is made clear by the earlier stated factors and those factors show a strong relationship. Kary is an employee and not an independent contractor.
Scope of Employment An employee is acting within the scope of his authority when he is performing services for which he has been employed, or when he is doing anything which is reasonably incidental to his employment. ” (Williams v. Cmty. Drive-In Theater, 214 Kan. 359, 364, 520 P. 2d 1296, 1300 (1974). A more definite expression of this rule reads, “the test is not necessarily whether the specific conduct was expressly authorized or forbidden by the employer, but whether such conduct should have been fairly foreseen from the nature of the employment and the duties relating to it. ” (Commerce Bank of St. Joseph, N. A. . State, 251 Kan. 207, 210, 833 P. 2d 996, 999 (1992).
Kary was acting within her scope of employment. When looking at both explanations of the test, several arguments appear to show that she was within the scope of employment. The first part of test refers to performing services for which she has been hired. She was hired to be a peanut vendor. She was well within her parameters of services she was supposed to be doing when she was selling peanuts to the fans at the stadium. Adding the curry powder to the peanuts is an action that is reasonably incidental to the services provided by a peanut vendor.
There was already an incentive to sell a high amount of peanuts as there was a fifty bag minimum to be met, otherwise the vendor would have a subpar performance for that day. There was more incentive added with the commission made from each bag of peanuts. The need to sell was topped off with the twenty dollar bonus given to vendor who sold the most peanuts after each game. Kary was among the least successful vendors at the park until she added the curry powder. It is reasonably incidental that a peanut vendor would add something to flavor their peanuts to make them taste better so he could sell more to make more money.
Also, Mr. Sample’s list of suggestions can also add to the argument that Kary was acting within her scope of employment. Some of the suggestions on the list included “be creative” and “distinguish yourself from other vendors. ” These suggestions could very reasonably cause Kary to think that flavoring the peanuts would be a good idea. Adding curry powder to peanuts is somewhat an out of the box idea, but it worked. It is a creative idea, which means that Kary is just following a suggestion from Mr. Sample.
Kary also distinguished herself from other vendors by adding the curry powder. Her peanuts were extremely popular with the fans. This would cause the fans to come back and look for her for the peanuts she was selling. The curry powder causes Kary to be distinguishable from other vendors, which means she was just following another suggestions from Mr. Sample when adding the curry powder. Her actions were not “expressly authorized or forbidden by the employer” but that does not matter with scope of employment as much as if the actions were reasonably foreseeable.
Since there was so much incentive to sell more peanuts, it is reasonably foreseeable that a vendor would try to make their peanuts better tasting than the ones other vendors were selling. Mr. Sample would argue that that is not the type of distinguishing he was referring to. He would argue that he was talking about distinguishing her uniform, not the peanuts she was selling. He may also argue that the incentive is not really that much. It is just an extra twenty dollars at the end of the game.
That twenty dollars is also given to only the highest seller of peanuts. That means that there is only a one in fifteen chance of getting that twenty dollars as there are generally fifteen peanut vendors per game. Mr. Sample might also argue that the list of suggestions was just that, suggestions. Kary did not necessarily have to use his list of suggestions when selling the peanuts. One more argument is that he would say that it is not reasonably foreseeable that she would add curry powder to the peanuts because of the chance that someone might be allergic.
He would argue that a reasonable person would think that there would be someone at the game who was allergic to curry powder. Despite Mr. Sample’s arguments, Kary is within her scope of employment. Her action of adding the curry powder to peanuts before each game is something that could be fairly foreseen as relating to her duties as a peanut vendor, especially if she is trying to be the highest seller. It is reasonable to think she would try to spice her peanuts up to see if she could sell more peanuts that way as her previous method was not working.