Misclassification of Workers - Proskauer Rose LLP

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v. The necessary skill involved in completion of the task for
which the worker is hired;
vi. The manner in which entrepreneurial risk and reward are
allocated (e.g., responsibility for operating costs; which
party supplies the instrumentalities; the right to hire
assistants or replacements; control over scheduling; place
of performance);
vii. Whether the employer provides benefits;
viii. The length of employment;
ix. The method of payment (by time or by the job);
x. The tax treatment of the hired party;
xi. Whether the work is part of the employer’s regular business
and/or necessary to it; and
xii. The intent of the parties.
No single factor, standing alone, is decisive. Rather, courts must
scrutinize the overall relationship between the worker and the
hiring party.
2. National Labor Relations Act (“NLRA”)
a. The jurisdiction of the NLRB extends only to the relationship
between an employer and its “employees”; it does not encompass
the relationship between a company and its “independent
contractors.”
b. Under the NLRA, the term “employee” includes “any employee
. . . but shall not include . . . any individual having the status of an
independent contractor.” 29 U.S.C. § 152(3) (2000).
c. Employment status under the NLRA is dependent upon common
law principles of agency. Common law agency principles require
an analysis of the “right to control.” See Dial-A-Mattress
Operating Corp., 326 N.L.R.B. No. 75 (1998); NLRB v. United
Ins. Co. of Am., 390 U.S. 254, 256 (1968).
i. But see AmeriHealth Inc., 329 N.L.R.B. No. 76 (1999), in
which the NLRB indicated that it might accord less weight
to issues of control and direct supervision in evaluating the
employment status of physicians contracting with a
managed care organization.
d. No specific formula exists, however, to determine whether a given
worker is an independent contractor or employee. Rather, “all of
the incidents of the relationship must be assessed and weighed with