11th Cir. Pattern Jury Instr. (Civil) 4.24

It is not always clear whether the law considers someone an “employee,”

and it is not always clear who the law considers someone’s “employer.” Some

people, for example, perform services for others while remaining self- employed as

independent contractors.

In this case, you must decide: Was [name of plaintiff] an employee of [name

of defendant], or was [name of plaintiff] an independent contractor? You should

answer this question in light of the economic realities of the entire relationship

between the parties. There are a number of factors you must consider, based on all

the evidence in the case:

(a) Who controls [name of plaintiff]’s work? In an employer/employee

relationship, the employer has the right to control the employee’s

work, to set the means and manner in which the work is done, and

set the hours of work. In contrast, an independent contractor

generally must accomplish a certain work assignment within a

desired time, but the details, means, and manner by which the

contractor completes that assignment are determined by the

independent contractor, normally using special skills necessary to

perform that kind of work.

(b) How is [name of plaintiff] paid? An employer usually pays an

employee on a time worked, piecework, or commission basis, and

an employer usually provides vacation or sick time, insurance,

retirement, and other fringe benefits to the employee. An

independent contractor is ordinarily paid an agreed or set amount,

or according to an agreed formula, for a given task or job, and no

benefits are provided.

(c) How much risk or opportunity does [name of plaintiff] have? An

independent contractor is generally one who has the opportunity to

make a profit or faces a risk of taking a loss. But an employee is

generally compensated at a predetermined rate, has no risk of loss,

and has social security taxes paid by the employer.

(d) Who provides [name of plaintiff]’s tools, equipment, and supplies?

An independent contractor usually provides the tools, equipment,

and supplies necessary to do the job – but an employee usually

does not.

(e) How does [name of plaintiff] offer services? Independent

contractors generally offer their services to the public or others in a

particular industry, have procured the necessary licenses for

performing their services, and may have a business name or listing

in the phone book. Employees ordinarily work for only one or just

a few employers, and do not have business names or listings.

(f) What is the parties’ intent? The parties’ intent is always important.

But the description the parties themselves give to their relationship

is not controlling – substance governs over form.

You should consider all the circumstances surrounding the work relationship

– no single factor determines the outcome. Nevertheless, the extent of the right to

control the means and manner of the worker’s performance is the most important

factor.