Correct, there is no law that says a delivery person must be an employee. However, it is also the case that the law is clear that simply deciding to call it an independent contractor arrangement does not make it so. The business has to be willing to give up the kind of control an employer has for it be an independent contractor arrangement. For example, a California appeals court held in the case of a pizza delivery driver that the driver was clearly an employee, noting the degree of control exercised by the employer:
Lee hired Heard to deliver pizzas to Lee's customers and directed and controlled (1) the number, nature and type of pizzas to be delivered, (2) the time when such deliveries would take place, (3) the persons and locations to whom they would be delivered and (4) the price to be charged for each pizza and the total amount of money to be collected from each customer. In short, Lee determined what would be delivered, when and to whom and what price would be charged. What portion of Heard's work was left to his discretion and not subject to Lee's control? Did it include anything more than the route Heard would take to a customer's home or how fast he would drive? Such factors generally have been considered to be simply a freedom inherent in the nature of the work and not determinative of the employment relation. (See, e.g., May v. Farrell (1928) 94 Cal.App. 703, 710, 271 P. 789; Curcic v. Nelson Display Co. (1937) 19 Cal.App.2d 46, 50, 64 P.2d 1153.) Moreover, it is at least arguable that Lee had the right to control this aspect of Heard's work as well. It would be Lee's obvious purpose and desire, and thus clearly part of Heard's responsibility, to get the fresh warm pizza to the customer as soon as possible. Indeed, it will doubtless be argued at trial that Heard's preoccupation with the necessity for prompt delivery contributed in some manner to the accident which allegedly caused plaintiff's injuries.
Essentially, the only evidence offered in support of the claim that Heard was an independent contractor was that he provided his own car, expenses and insurance. As already suggested, such circumstance would at most be a “secondary element” and, without more, worthy of little weight.
Toyota Motor Sales U.S.A., Inc. v. Superior Court, 220 Cal. App. 3d 864, 875–76, 269 Cal. Rptr. 647, 653–54 (Ct. App. 1990), as modified (June 5, 1990)
But as the second paragraph of the quote from California decision above indicates, those considerations are secondary and worth only "little weight" in determining whether the driver is an employee. The control aspects are the ones that are most important in employee vs. independent contractor arrangements.
And it is not just a California court that has reached that conclusion. So did a Rhode Island court:
After due consideration of the parties' stipulated facts and the arguments advanced at oral argument and in the parties' memoranda on this issue, this Court finds that defendant's motion for summary judgment, to the extent premised on the argument that the tortfeasor, Zuromski, was not an employee but an independent contractor for whose actions it cannot be held liable, must be denied. The defendant clearly had control over Zuromski, as one would expect in an employer-employee relationship, and none of the secondary elements described above weigh in favor of an independent contractor relationship. Mindful that no one factor, standing alone, is outcome determinative, and after weighing of all of the incidents of the relationship between the defendant and its pizza delivery drivers generally, and its relationship with Zuromski in particular, this Court finds that these factors weigh in favor of an employer-employee relationship.
Estate of Perry v. Green Card, Inc., No. PC/03-4671, 2006 WL 3479056, at *10 (R.I. Super. Nov. 30, 2006), as amended (Dec. 1, 2006).
And this from an Ohio Court:
The principle test used to determine the character of the employment relationship focuses upon the degree of control reserved by the employer. Bostic v. Conner (1988), 37 Ohio St.3d 144, 145. Ordinarily, whether a person is an employee or an independent contractor is a factual determination for the trier of fact. Id. However, the law indulges in no presumption that an employee is either a servant or an independent contractor. Industrial Comm. v. Laird (1933), 126 Ohio St. 617, paragraph one of the syllabus. Therefore, the burden of establishing that status falls upon the party who has to rely upon it to establish its claim or defense. Id. Here, appellant has to establish that underinsured coverage exists in order to hold Erie liable for damages. In order to do that, appellant would have to show that Tanner was an independent contractor. Appellant has failed to produce any summary judgment evidence to contradict the evidence in the record that suggests Tanner was an employee.
The appellant's contention that Mr. Tanner might be an independent contractor simply is not supported by any summary judgment evidence or permissible inference. At appellant's deposition he acknowledged that following the accident Mr. Tanner was wearing a Godfather's shirt. Wearing a company uniform is indicative that an individual is an employee, not an independent contractor. Mr. Tanner's actions following the accident are also indicative that he was an employee. Appellant also stated in his deposition that Mr. Tanner had to ask permission from the police in order to call Godfather's and tell them that he was involved in an accident and would not be back to work. Mr. Tanner had to contact Godfather's because they expected him to come back to work. Lastly, Mr. Tanner referred to Godfather's as his employer. All of these actions taken together make it clear that Tanner was an employee and not an independent contractor. See Bostic, supra at 146 and the authorities cited there for indicia of the relationship. Appellant produced no evidence to create a genuine issue of fact on this question. The mere fact that Tanner was driving his own vehicle, rather than a company car, adds no weight to appellant's argument since employees are frequently using their own vehicles for company business.
Chavis v. Tanner, 2001-Ohio-2615. Note again the focus on employer control and that the court notes that the fact that the employee drives (and presumably pays the expenses for) his own vehicle "adds no weight" to an argument for independent contractor status.