Employment law- attack sheets

Elon University **We aren't endorsed by this school
LAW 321
Sep 10, 2023
Uploaded by nicolesodano1 on coursehero.com
STEP 1: FIGURE OUT IF THE ARE AN EMPLOYEE ISSUE: IS THE PERSON CONSIDERED AN EMPLOYEE? IF QUESTION SAYS EMPLOYEE, do not do an analysis of what an independent contractor is and do not differentiate between employees and IC. RULE: When Is an individual an Employee [Restatement 3d] - An individual will be treated as an employee if he is acting to serve the employer's interests, the employer consents to receive the individual's work, and the work relationship effectively prevents the individual from rendering his services as part of an independent business. ANALYSIS:Differences between Employee and Independent Contractor *Break down and talk about which ones are for EE and for IC*** Who is paying worker Amount of control/who has control What equipment is being used What office space is being used Is the worker receiving benefits? Can the worker work for someone else at the same time Does the worker have the ability to hire someone else? (subcontractor) Is there a contract specifying the terms of employment? Does the worker have the ability to make a profit on a particular job? What amount of skill is required of a particular job? *MOST COURTS APPLY ECONOMIC REALITIES TEST TO FLSA/FMLA CLAIM* Economic Realities Test Defines Employment- an employee, as distinguished form a person who is engaged in a business of his own, is one, who as a matter of economic reality follows the usual path of an employee and is dependent on the business which he serves Economic Dependence - When the workers are subject as a matter of economic fact, to the evils the [NLRA] was designed to eradicate, these workers should fall within the protection of the statute notwithstanding technical legal classification Six Factors ( need all factors) - need totality of the circumstances; some factors might be more compelling A limited amount of the worker's investment in facilities and equipment The nature (close supervision) and degree of control (high) retained or exercised by the company 1
The worker's limited opportunities for profit and loss The small degree of the worker's independent initiative, judgment, and foresight in open market competition with others required for the success of the operation A high degree of permanency of the work relationship The broad extent to which the services are an integral part of the company's business ANALYSIS: (if possibility that is unpaid intern) Department of labor has 6 criteria needed for internship to be unpaid 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; The internship experience is for the benefit of the intern The intern does not displace regular employees, but works under close supervision of existing staff; 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; The intern is not necessarily entitled to a job at the conclusion of the internship; and The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship. "This exclusion from the definition of employment is necessarily quite narrow because the FLSA's definition of 'employ' is very broad." DOL Intern Fact Sheet. Glatt v. Fox Searchlight Pictures Inc. CONCLUSION: The employee is either an Independent contractor Employee Unpaid intern STEP 2: FIGURE OUT IF THE EMPLOYER IS A JOINT EMPLOYER ISSUE: IS THE EMPLOYEE CONSIDERED A JOINT EMPLOYER? Joint Employment Two or more closely related companies, such as contractors-subcontractors and franchisors-franchisees. These workers are employees of both companies for the 2
purpose of employment laws. RULE: Joint employment exists where: Employers arrange to share a worker's services; One employer is working in the interest of another employer in relation to the employee; OR The employers share control over the employee or a company employing an employee controls or is controlled by another company. ANALYSIS: Joint Employment Tests- when testing if two employers are Joint employers, must look to see if they have formal and Functional control Does the Employer have formal control Carter (4 part) Test: Whether the alleged employer had the power to hire/fire Supervised and controlled employee work schedules or conditions of employment Determined the rate and method of payment Maintained employment records In the absence of Formal control, apply functional control test Enterprise Test- Court considered the following 4 factors: FORMAL CONTROL Authority to hire and fire employees; Authority to promulgate work rules and assignments and set conditions of employment, including compensation, benefits and hours; Day-to-day supervision, including employee discipline; and Control of employee records, including payroll, insurance, taxes and the like. OR Zheng Test- Court considered the following 6 factors: FUNCTIONAL CONTROL Whether the alleged employer's premises and equipment were used for the plaintiff's work Whether the workers had a business that could or did shift as a unit from one joint employer to another The extent to which plaintiffs formed a discrete line-job that was integral to the process of production Whether responsibility under the K could pass from on subcontractor to another without material change The degree to which the alleged employer supervised plaintiff's 3
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