Uncertainty in Employee Status Across Federal Law
67 Pages Posted: 12 Apr 2019 Last revised: 10 Aug 2020
Date Written: September 20, 2019
Numerous federal statutes rely on a distinction between employees and independent contractors. Based on a series of Supreme Court decisions from 1968 through 2003, courts and administrative agencies have used a common law multifactor test to draw this distinction. In an effort to enhance predictability and certainty within and across legislation, these cases have rejected a purposive approach in applying the test. But the Supreme Court has never said which, if any, of the factors are the most important in the analysis, nor has anyone determined whether the underlying purpose—enhancing predictability and certainty—has been attained.
This empirical Study uses content analysis to answer these questions. First, based on a variety of statistics, it determines which factors are the most and least important under several federal statutory schemes. Next, it calculates the factors’ accuracies and compares the results to determine if there is consistency within and across the legislation and whether predictability and certainty have been achieved. Concluding that predictability and certainty have not been achieved using the common law multifactor test, this Article proposes and evaluates reform efforts to solve, or at least reduce, the inconsistency problem while still achieving the goals of the legislation.
Keywords: employee, independent contractor, right to control, empirical, NLRA, copyright, ERISA, OSHA, Title VII, ADA, ADEA, labor, discrimination, occupational safety, work made for hire, work for hire, content analysis, multifactor
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