172, 30 N.E.2d 369 (1940) (applying the “general concept” that the distinction between an employee and an independent contractor turns on “the right of control over the [worker] in respect of the manner in which his work is to be done”); see also Restatement (SeCOnd) of Agency § 220(1) cmt. d (1958) (stating that “control or right to control the physical conduct of the person giving service is important and in many situations is determinative” of whether that person is an employee or independent contractor); Warren A. Seavy, Agenoy § 84, at 142 (1964) (observing that “the right to control the physical movements of the employee is [typically] the most important single element”); cf. Tieberg v. Unemployment Ins. Appeals Bd., 2 Cal.3d 943, 88 Cal.Rptr. 175, 471 P.2d 975, 980, 982 (1970) (<HOLDING>). B. The District Court’s determination as to
holding that a general contractors right to forbid the work from being performed in a dangerous manner and the fact that he would have stopped the work and required protective equipment had he seen the employee of the independent contractor not using such equipment merely showed the possibility of control not actual control holding a defendant is liable as a control person if the defendant had the power to control the general affairs of the entity primarily liable at the time the entity violated the securities laws but declining to decide whether power to control means simply abstract power to control or actual exercise of the power to control internal quotations omitted holding that the right to control the means by which the work is accomplished is clearly the most significant test of the employment relationship and observing that many of the other factors enumerated in the restatement second are merely evidentiary indicia of the right to control holding that defendant was not an agent because alleged principal did not control means by which the defendants accomplished their duties holding that the right to control is measured by considering 1 the independent nature of the workers business 2 the workers obligation to furnish necessary tools supplies and materials to perform the job 3 the workers right to control the progress of the work except as to the final results 4 the time for which the worker is employed and 5 the method of payment whether by unit of time or by the job