The Supreme Court has said that there is no definition that solves all problems
relating to the employer-employee relationship under the Fair Labor Standards Act (FLSA).
The Court has also said that determination of the relation cannot be based on isolated
factors or upon a single characteristic, but depends upon the circumstances of the whole
activity. The goal of the analysis is to determine the underlying economic reality of the
situation and whether the individual is economically dependent on the supposed employer.
In general, an employee, as distinguished from an independent contractor who is engaged in
a business of his own, is one who "follows the usual path of an employee" and is
dependent on the business that he serves. The factors that the Supreme Court has
considered significant, although no single one is regarded as controlling are:
(1) the extent to which the worker's services are an integral part of the employer's
business (examples: Does the worker play an integral role in the business by performing
the primary type of work that the employer performs for his customers or clients? Does the
worker perform a discrete job that is one part of the business' overall process of
production? Does the worker supervise any of the company's employees?);
(2) the permanency of the relationship (example: How long has the worker worked for the
(3) the amount of the worker's investment in facilities and equipment (examples: Is the
worker reimbursed for any purchases or materials, supplies, etc.? Does the worker use his
or her own tools or equipment?);
(4) the nature and degree of control by the principal (examples: Who decides on what
hours to be worked? Who is responsible for quality control? Does the worker work for any
other company(s)? Who sets the pay rate?);
(5) the worker's opportunities for profit and loss (examples: Did the worker make any
investments such as insurance or bonding? Can the worker earn a profit by performing the
job more efficiently or exercising managerial skill or suffer a loss of capital
(6) the level of skill required in performing the job and the amount of initiative,
judgment, or foresight in open market competition with others required for the success of
the claimed independent enterprise (examples: Does the worker perform routine tasks
requiring little training? Does the worker advertise independently via yellow pages,
business cards, etc.? Does the worker have a separate business site?).
For information about trainees (including School-to-Work
programs) and volunteers or to find out whether you are covered by the FLSA, click on the underlined text.
Remember that some employees are exempt from various
provisions of the law. To explore the broad categories of these exemptions or to obtain
further information about the FLSA, click on the underlined
For more information, please contact your local Wage and Hour District
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