Employment Relationship

Question 1

Tests to Determine Who Is an Employee

3

Answer 1

(1) Right to Control Test
(2) Economic Realities Test
(3) ABC Test

Question 2

Right to Control Test

Answer 2

Individual is an EE when:

(1) Individual RENDERS SERVICES TO SERVE ER’S INTERESTS;
(2) ER CONSENTS to receive those services; and
(3) ER CONTROLS MANNER AND MEANS by which the individual renders services

Question 3

Factors Considered Under Right to Control Test

Answer 3

(1) AGREEMENT on control
(2) Whether AGENT ENGAGED IN DISTINCT OCCUPATION or business
(3) Whether PRINCIPAL ENGAGED IN A BUSINESS
(4) Whether work being done is IN THE USUAL COURSE OF THE PRINCIPAL’S BUSINESS
(5) SKILL required
(6) Whether AGENT SUPPLIES OWN TOOLS AND PLACE OF WORK
(7) METHOD OF PAY (hourly or by job)
(8) Whether PARTIES BELIEVE THEY ARE CREATING AN EMPLOYMENT RELATIONSHIP

Question 4

Cases Right to Control Test Applies To

Answer 4

TORT ACTIONS

NLRA, ERISA, IRC, OSHA, Title VII CRA, ADA, ADEA, Indiana Workers’ Compensation

Question 5

Economic Realities Test

Answer 5

Under the economic realities of the situation, is the agent ECONOMICALLY DEPENDENT on the principal

Question 6

Factors Considered Under Economic Realities Test

Answer 6

(1) Extent of the employer’s CONTROL AND SUPERVISION
(2) SKILLS REQUIRED to perform the work
(3) RESPONSIBILITIES FOR COSTS such as equipment, supplies, and licenses
(4) METHOD OF PAYMENT
(5) LENGTH of job commitment
(6) EXPECTATIONS for completing job

Question 7

Cases Economic Realities Test Applies To

Answer 7

FLSA

FLMA

Question 8

ABC Test

Answer 8

PRESUMED TO BE EE unless ER shows:

(1) Agent FREE FROM CONTROL;
(2) Service performed OUTSIDE USUAL COURSE OF BUSINESS FOR PRINCIPAL; and
(3) Agent is customarily engaged in an independent established trade, occupation, profession, or business SIMILAR TO THE SERVICE PERFORMED

Question 9

Cases ABC Test Applies To

Answer 9

Indiana unemployment compensation

Question 10

Constraints on ER’s Ability to Terminate At-Will EE

Answer 10

(1) An employment agreement for a SPECIFIC PERIOD;
(2) An employer’s enforceable POLICY STATEMENT;
(3) ADEQUATE INDEPENDENT CONSIDERATION for a promise of permanent employment;
(4) PUBLIC POLICY; and
(5) PROMISSORY ESTOPPEL

Question 11

At-Will EE

Answer 11

EE or ER is free at any time, without notice or cause, to terminate the relationship

Question 12

For-Cause EE

Answer 12

Can only be discharged for cause