From JDSupra, Christopher Lazarini discusses a New York case in which a college student who was a financial representative or agent and classified as an independent contractor. The court agreed that he was an independent contractor. Christopher writes:
Under New York law, the critical inquiry in determining whether an employment relationship exists rests with the degree of control the purported employer exercises over the work performed. After granting Plaintiff months to conduct discovery, the Court finds no factors supporting an employment relationship. Rather, multiple factors weigh against that finding. First, no facts support Plaintiff’s claim that Defendant controlled when and where Plaintiff was to work. Requiring one to be at a job site, at certain hours, and to attend regular meetings, the Court holds, are factors to consider, but none is conclusive. Here, they are outweighed by Plaintiff’s ability to control the time he devoted to his duties and the location in which he performed them. Second, Plaintiff could work for other companies and was free to sell competitors’ products where those products offered lower premiums than Defendant’s. This absence of exclusivity, the Court finds, weighs against an employment relationship. Third, Plaintiff did not receive health or other insurance benefits from Defendant, he worked on a commission basis only and Defendant did not withhold taxes from Plaintiff’s compensation. Fourth, the Court rejects Plaintiff’s argument that Defendant’s use of training materials, guidebooks, and marketing materials were indicia of control. Those materials merely offered advice on how to be a successful salesman. Finally, the Court points to Plaintiff’s contract with Defendant, in which he agreed that he was an independent contractor as another factor supporting the absence of an employment relationship. While Defendant’s label is not dispositive, when combined with the other factors, the Court has little trouble concluding that no employment relationship existed.
Source: Chris Lazarini Examines Employee v. Independent Contractor Issue | Bass, Berry & Sims PLC – JDSupra