11th Cir. Pattern Jury Instr. (Civil) 4.25

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. Others are clearly employees. But it may not always be

clear who is an employer of the employee. Sometimes an employee may have

more than one employer at the same time.

So, in this case, you must decide: Was [name of plaintiff] [name of

defendant]’s employee as well as an employee of [name of alleged other

employer]? You should answer this question in light of the economic realities of

the entire relationship between the parties based on the evidence.

Consider all the following factors to the extent you decide that each applies

to this case:

(a) the nature and degree of control over the employee and who

exercises that control;

(b) the degree of supervision, direct or indirect, over the employee’s

work and who exercises that supervision;

(c) who exercises the power to determine the employee’s pay rate or

method of payment;

(d) who has the right, directly or indirectly, to hire, fire, or modify the

employee’s employment conditions;

(e) who is responsible for preparing the payroll and paying wages;

(f) who made the investment in the equipment and facilities the

employee uses;

(g) who has the opportunity for profit and loss;

(h) the employment’s permanence and exclusiveness;

(i) the degree of skill the job requires;

(j) the ownership of the property or facilities where the employee

works; and

(k) the performance of a specialty job within the production line

integral to the business.

Consideration of all the circumstances surrounding the work relationship is

essential. No single factor is determinative. Nevertheless, the extent of the right to

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

factor.