Iws 3

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Iws 3

  1. 1. Independent Contractors versus Employees Legal Overview
  2. 2. Fair Labor Standards Act <ul><li>Factors a court considers: </li></ul><ul><ul><li>Investment in equipment and facilities </li></ul></ul><ul><ul><li>Opportunities for profit and loss </li></ul></ul><ul><ul><li>Degree of control exercised by the persons for whom he performs work </li></ul></ul><ul><ul><li>Skill required of the individual performing his work </li></ul></ul><ul><ul><li>- Whether the service performed is integral to the employer’s business </li></ul></ul><ul><ul><ul><li>29 U.S.C.A. § 203 (d)-(g); 29 C.F.R. § 791.2(a) </li></ul></ul></ul>
  3. 3. Courts Application <ul><li>As courts have determined, these are merely factors to aid the courts </li></ul><ul><li>No single factor is determinative </li></ul><ul><li>Look to the totality of the circumstances </li></ul><ul><li>Rutherford Food Corp. v. McCOmb , 331 U.S. 772 </li></ul>
  4. 4. Major Question <ul><li>Right of control that the employer maintains over the employee </li></ul><ul><li>In most states, the burden is on the employer to show that the individual is an independent contractor </li></ul>
  5. 5. How does the help our client? <ul><li>We want to control who has access to the product </li></ul><ul><li>Commentators have noted about the IP disputes between workers and employers </li></ul><ul><ul><li>If worker was employee, then material was created in the course of regular employment and the employer has substantial rights to the material in question </li></ul></ul>
  6. 6. Does this really help us solve our problem? <ul><li>If we don’t “own” the end product or the intermediate product based on the aforementioned materials, even if the independent contractors sign an employment agreement - then what is the point???? </li></ul>

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