Understanding Employer-Employee Relationships by Leticia Gonzalez-Estefani: Forms

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.

Eleventh Circuit: Aimable v. Long & Scott Farms, 20 F.3d 434 (11th Cir. 1994).

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.

United States Supreme Court: Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323, 112 S. Ct. 1344, 117 L. Ed. 2d 581 (1992).

THIS RESEARCH GUIDE/PATHFINDER DOES NOT REPRESENT ANY LEGAL ADVICE FOR ANY REASON AND DOES NOT ESTABLISH ANY ATTORNEY-CLIENT RELATIONSHIP.

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