Who is Ee/Er? Flashcards
Tests for Determining Whether P is Ee or IC
RTC
ERT
Hybrid (like ABC)
RTC
no single factor dispositive
does hiring party control the manner and means of work? if yes = Ee
see list of factors
Default test for federal protective legislation where “employee” is defined circularly
RTC (like NLRA, but see full list)
ERT
totality of the circumstances
ask whether, as a matter of economic reality, the individuals are dependent on the business to which they render services
see list of factors
Test used for employee defined as “suffer or permitted to work”
ERT (like FLSA, FMLA)
ABC Hybrid Test
A. such indvidual has been and will continue to be free from control or direction over the service performed
B. such service is either outside the usual course of business or outside the enterprise
C. such individual is customarily engaged in an independently established trade, occupation, etc.
* If any criteria isn’t met, P is an employee
Best Test for Ee/Er
Er: RTC
Ee: ABC
When is a franchiser liability for conduct of franchisee?
Instrumentality Test (basically Right to Control): When franchisor has right to control the specific policy or practice resulting in the harm to the P
Current NLRB Joint Employer Rule
Joint employer must posesses AND exercise substantial direct and immediate control over one or more essential terms and conditions of employment (used to be just possess)
