5th Cir. Pattern Jury Instr. (Civil) 11.26

Contractor

A. Committee Notes

This charge is for FLSA cases in which there are

disputes about whether the plaintiff is an employee or

an independent contractor. Such disputes are usually

questions of fact for the jury. See Campbell v. Keystone

Aerial Surveys, Inc. , 138 F.3d 996, 1006 (5th Cir. 1998)

(Texas law); McKee v. Brimmer , 39 F.3d 94, 97 (5th Cir.

1994) (Mississippi law); Brown v. Cities Serv. Oil Co. ,

733 F.2d 1156, 1161 (5th Cir. 1984) (Louisiana law).

The central issue in determining employee/

independent contractor status is “whether the alleged

employee so economically depends upon the business to

which he renders his services, such that the individual,

as a matter of economic reality, is not in business for

himself.” Hobbs v. Petroplex Pipe & Constr., Inc. , 946

F.3d 824, 829 (5th Cir. 2020) (quoting Thibault v.

Bellsouth Telecomms., Inc. , 612 F.3d 843, 845 (5th Cir.

2010)). Courts use five “non-exhaustive” “economic reality” factors to guide the inquiry: “(1) the degree of

control exercised by the alleged employer; (2) the extent

of the relative investments of the worker and the alleged employer; (3) the degree to which the worker’s opportunity for profit or loss is determined by the alleged

employer; (4) the skill and initiative required in

performing the job; and (5) the permanency of the

relationship. Id. (quoting Hopkins v. Cornerstone Am. ,

545 F.3d 338, 343 (5th Cir. 2008)). No single factor is

determinative.

1

Id. “Rather, each factor is a tool used to

gauge the economic dependence of the alleged employee,

1The Fifth Circuit has adopted a “hybrid economic realities/common

law control test” to determine employee/independent contractor status

under Title VII. See Juino v. Livingston Par . Fire Dist. No. 5 , 717 F .3d

431, 434 (5th Cir. 2013); Muhammad v. Dall. Cty. Cmty. Supervision &

Corr . Dep’t, 479 F .3d 377, 380 (5th Cir. 2007). The “right to control [the]

employee’s conduct” is the most important component of the hybrid test.

Muhammad , 479 F .3d at 480; see also Juino , 717 F .3d at 434 (courts

“should emphasize” the “common law control portion of the test” “over the

11.26EMPLOYMENT CLAIMS

293

and each must be applied with this ultimate concept in

mind.” Id.

B. Charge

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

perform services for others while remaining self-employed as independent contractors.

In this case, you must decide whether Plaintiff

[name] was an employee of Defendant [name] or an independent contractor. You should answer this question

in light of the economic realities of the entire relationship between the parties and in light of whether

Plaintiff [name] economically depended on Defendant

[name]. There are a number of factors you must

consider, based on all the evidence in the case. The factors are as follows:

1. How much control Defendant [name] has over

Plaintiff [name]’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 to 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.

economic realities portion”). The “hybrid” test results “in a narrower definition of employee than under a true economic-realities test.” Hopkins,

545 F .3d at 347. The Fifth Circuit explained in Hopkins that “it is legally

possible to be an employee for purposes of the FLSA and an independent

contractor under most other statutes.” Id. (citing Nationwide Mut. Ins. Co.

v. Darden, 503 U.S. 318, 326 (1992)).