Employment Law: Understanding Wrongful Termination. A Research Guide By Cherish Fuller: Court Rules & Practice Materials

Instruction 85-6 Employee or Independent Contractor

There has been evidence in the case disputing whether the plaintiff was an employee or an independent contractor. I instruct you that the FLSA applies only to employees and not to independent contractors.

Whether or not a person is an employee or an independent contractor ultimately is a function of whether the alleged employee so economically depends on the alleged employer’s business that, as a matter of economic reality, the plaintiff is not in business for himself. In evaluating this, you should look at the totality of circumstances, including, among other things:

• 1.the degree of control exercised by [identify employer] over plaintiff’s work;
• 2.the duration and permanency of the relationship between the parties;
• 3.the skill and initiative required to perform the plaintiff’s work;
• 4.the extent of the relative investments of the plaintiff and [identify employer];
• 5.the degree to which plaintiff’s opportunities for profit and loss depend on [identify employer]; and
• 6.the degree to which the services rendered by plaintiff are an integral part of the business of [identify employer].

No one factor is determinative in making this decision. Rather you should consider all of these factors in making your decision.

If you find that the plaintiff was an independent contractor, then your consideration of the case ends there, and you must find for the defendant.

• Civil Procedure Supplement for Use with All Pleading and Procedure Casebooks 2012-2013 by Jack H. Friedenthal; Arthur R. Miller

  ISBN: 0314281215

  This supplement contains the federal statutes and rules governing procedure, along with comparative state provisions. In some cases other materials, such as notes of advisory committees, are included. The supplement also includes an illustrative problem with sample documents and a litigation flowchart.

• Federal Rules Evidence by Mueller

  ISBN: 1454827947

  Federal Rules of Civil Procedure: With Advisory Committee Notes, Selected Provisions of the Federal Rules of Appellate Procedure, Selected Federal Statutes, the Federal Rules of Evidence, the United States Constitution, and Supplementary Cases, Notes, and Other Materials, 2013

• Florida Rules of Court - State, 2013 ed. (Vol. I, Florida Court Rules) [Paperback] by Thomas West

  ISBN: 0314653759

  This Florida Rules of Court State volume is a collection of state court rules governing civil and criminal procedure in Florida. This volume contains: The Evidence Code; Rules of Civil Procedure;Rules of Judicial Administration; Rules of Criminal Procedure; Probate Rules; Rules of Traffic Court; Small Claims Rules; Rules of Juvenile Procedure; Rules of Appellate Procedure; Family Law Rules of Procedure; and more.

• Florida Rules of Court - Federal, 2013 ed. (Vol. II, Florida Court Rules) [Paperback] by Thomas West

  ISBN: 0314653767

  Florida Rules of Court; Federal, collects rules and associated content governing practice before federal courts in Florida as well as the U.S. Court of Appeals for the Eleventh Circuit. This handy softbound pamphlet includes the Federal Rules of Civil Procedure, Federal Rules of Evidence, Federal Rules of Appellate Procedure, and local rules of the Eleventh Circuit, as well as local rules applicable in the U.S. District and Bankruptcy Courts for the Northern, Middle, and Southern Districts of Florida.

Instruction 88A-4 Employer-Employee Relationship

Before addressing the first element of the claim, you must determine whether the plaintiff has proven by a preponderance of the evidence that the plaintiff is an employee of the defendant.

The parties dispute whether the plaintiff was an employee or an independent contractor. I instruct you that the Americans with Disabilities Act applies only to employees and not to independent contractors.

Whether or not a person is an employee or an independent contractor ultimately is a question of whether the employer controls the manner and means of the person’s work. But in evaluating this, you should look at the totality of circumstances, such as, among other things:

• 1.the manner in which the relationship between plaintiff and defendant was established;
• 2.the skills required to perform the plaintiff’s work;
• 3.the source of the instruments and tools which the plaintiff uses;
• 4.the location at which the plaintiff works;
• 5.the duration of the relationship between the parties;
• 6.whether the defendant has the right to assign additional projects to the plaintiff;
• 7.the extent of the plaintiff’s discretion over when and how long to work;
• 8.the method of payment;
• 9.the plaintiff’s role in hiring and paying assistants;
• 10.whether the defendant is in business and whether the plaintiff’s work is part of the regular business of the defendant;
• 11.whether the defendant provides employee benefits to the plaintiff, such as medical care, vacation benefits, and retirement benefits; and
• 12.the tax treatment of the plaintiff, such as whether the defendant pays social security taxes on payments to the plaintiff, and whether the payments to the plaintiff are included on a W-2 or 1099 tax form at the end of the year.

No one factor is determinative. Rather you should consider all of these factors in making your decision.

If you find that the plaintiff was an independent contractor, then your consideration of the case ends there, and you must find for the defendant.