ERISA definition of an Employee: correct answers "any individual employed by an employer."
Common-Law Agency Doctrine/ "Right to Control" test correct answers the dominant test for determining whether an individual is a statutory employee under most federal and state anti-discrimination employme...
Employment law || with 100% Errorless Solutions.
ERISA definition of an Employee: correct answers "any individual employed by an employer."
Common-Law Agency Doctrine/ "Right to Control" test correct answers the dominant test for
determining whether an individual is a statutory employee under most federal and state anti-
discrimination employment laws.
In determining whether a hired party is an employee under the general common law of
agency,what do we consider correct answers the hiring party's right to control the manner and
means by which the product is accomplished.
What relevant factors are considered regarding the hiring party's right to control the manner and
means by which the product is accomplished. correct answers The skill required
The source of the instrumentalities and tools
The location of the work
The duration of the relationship between the parties
Whether the hiring party has the right to assign additional projects to the hired party
The extent of the hired party's discretion over when and how long to work
The method of payment
The hired party's role in hiring and paying assistants
Whether the work is part of the regular business of the hiring party
Whether the hiring party is in business
The provision of employee benefits
Tax treatment of the hired party
Must all relevant factors be assessed and weighed regarding the hiring party's right to control the
manner and means by which the product is accomplished. correct answers Yes, no one factor
being decisive
If Congress used the term employee without defining it, what is the intended definition? correct
answers When Congress has used the term employee without defining it, it is intended that
Congress is describing the conventional master-servant relationship.
,What is the purpose of the "right to control test?" correct answers Courts developed the right to
control test for the purpose of determining when it is appropriate to impose respondeat superior
(strict) liability on a principal, as a master, for the torts of an agent, as a servant.
What Act uses the Economy Realities Test. correct answers This is used under the Fair Labor
Standards Act of 1938 ("FLSA")
FLSA definition of an Employee correct answers "Employees are those who as a matter of
economic reality are dependent upon the business to which they render service."
What legislation uses the economic reality test? correct answers Social Welfare legislation
What is the ultimate determinant in finding employee v. independent contractor is the economic
dependence. correct answers The degrees the workers depend on the employer.
The 6 factors that asses the true nature of the employee/ Independent Contractor relationship
correct answers 1) the nature and degree of the alleged employer's control as to the manner in
which the work is to be performed;
2) the alleged employee's opportunity for profit or loss depending upon his managerial skill;
3) the alleged employee's investment in equipment or materials required for his task, or his
employment of workers;
4) whether the service rendered requires a special skill;
5) the degree of permanency and duration of the working relationship;
6) the extent to which the service rendered is an integral part of the alleged employer's business.
KEY
What test does the restatement use for assessing employment status? correct answers
Entrepreneurial Control Test
Restatement view on independent contractors correct answers The restatement takes the view
that the right to control the physical performance of the job is the central element of status as an
independent contractor.
Restatement elements of an employee correct answers the individual acts, at least in part, to
serve the interests of the employer
the employer consents to receive the individual's services; and
the employer controls the manner and means by which the individual renders services, or the
employer otherwise effectively prevents the individual from rendering those services as
independent businessperson.
,Restatement elements of an Independent Contractor correct answers The individual in his or her
own interest exercises entrepreneurial control over important business decisions, including
whether to hire and where to assign assistants, whether to purchase and where to deploy
equipment, and whether and when to provide service to other customers
Volunteers correct answers Agent under the full control of their principals are treated as
employees by the common law for purposes of vicarious liability, regardless of whether they
perform their work without compensation.
Some courts have held, however, that those who work voluntarily without compensation are not
employees for purposes of certain employment laws.
Interns
Department of Labor ("DOL")
6 Factors to determine whether interns are employees under the FLSA. correct answers 1. The
internship, even though it includes actual operation of the facilities of the employer, is similar to
training which would be given in an educational environment;
2. The internship experience is for the benefit of the intern;
3. he intern does not displace regular employees, but works under close supervision of existing
staff;
4. The employer that provides the training derives no immediate advantage from the activities of
the intern, and on occasion its operations may actually be impeded;
5. The intern is not necessarily entitled to a job at the conclusion of the internships; and
6. The employer and the intern understand that the intern is not entitled to wages for the time
spent in the internship
Must all of the DOL 6 factors to determine whether interns are employees under the FLSA be
met? correct answers Yes, all 6 factors have to be satisfied
Some courts don't use DOL 6 factor test for determining whether interns are employees, they use
the ______ test correct answers Primary Beneficiary test
Whether the intern or the employer is the "primary beneficiary" of the relationship.
Joint Employers
7 Factor for determining whether garment workers are jointly employed by the "jobber" correct
answers The extent to which the workers perform a discrete line-job forming an integral part of
the putative joint employer's integrated process of production or overall business objective;
, Whether the putative joint employer's premises and equipment were used for the work;
The extent of the putative employees' work for the putative joint employer;
The permanence or duration of the working relationship between the workers and the putative
joint employer;
The degree of control exercised by the putative joint employer over the workers;
Whether responsibility under the contract with the putative joint employer passed without
material changes from one group of potential joint employees to another; and
Whether the workers had a business organization that could or did shift as a unit from one
putative joint employer to another.
in certain circumstances, an entity can be a joint employer under the FLSA even when it does not
hire and fire its joint employees, directly dictate their hours, or pay them
what are the 6 factors correct answers Whether Liberty's premises and equipment were used for
the plaintiffs' work;
Whether the contractor corporations had a business that could or did shift as unit from one
putative joint employer to another;
The extent to which plaintiffs performed a discrete line-job that was integral to Liberty's process
of production;
Whether responsibility under the contracts could pass from one subcontractor to another without
material changes;
The degrees to which the Liberty Defendants or their agents supervised plaintiffs' work; and
Whether plaintiffs worked exclusively or predominantly for the Liberty Defendants
Test for joint employment under the FLSA
4 Factors correct answers emphasizes control over essential terms and conditions of employment
The alleged employer's authority to hire and fire the relevant employees;
The alleged employer's authority to promulgate work rules and assignments and to set the
employees' conditions of employment: compensation, benefits, and work schedules, including
the rate and method of payment;
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