How Can You Tell Whether a Worker is an Employee or an Independent Contractor?

[youtube https://www.youtube.com/watch?v=0KZ8yZlZQoA] In Part 2 of this six-part series, we go into further discussion on employee classification with regards to independent contractors vs employees. We will start by covering the other two other tests which the NLRA uses to determine the employer-worker relationship: The Fair Labor Standards Act (FLSA) Economic Realities Test and the Discrimination Statutes Test. The FLSA Economic Realities Test may apply only to workers designated as employees, not independent contractors. Thus, the proper classification of workers is critical to determine the application of these laws. The employer-employee relationship under the FLSA is tested by economic reality rather than technical concepts. The test examines factors focused on the total activity or situation of the relationship. An employee is one who is dependent upon the business to which the individual renders service The amount of workers’ investment in facility and equipment The nature of degree and control by the principal The amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent contractor The degree of independent business, organization, and operation There are certain factors which are immaterial according to the FLSA: The place where the work is performed The absence of a formal employment agreement Whether the alleged independent contractor is licensed Additionally, the Supreme Court has held that the time or mode of pay does not control the determination of employee status. The Equal Employment Opportunity Commission (EEOC) Discrimination Statues Test is the most stringent of the three tests. It is often used in discrimination cases. The question of whether an employer-employee relationship exists is fact-specific and depends on whether the employer controls the means and manner of the worker’s performance. The factors indicating that a worker is in an employment relationship include: The employer has the right to control when, where, and how the worker performs the job. The worker does not require a high level of skill and expertise. The employer furnishes the tools, materials, and equipment. The work is performed on the employer’s premises. There is a continuing relationship between the worker and the employer. The employer has the right to assign additional projects to the worker. The employer sets the hours of work and the duration of the...