What Are the Factors Used by Courts to Determine Independant Contractors and Joint Employment ?

In Bynog v. Cipriani Group (1 NY3d 193, 802 N.E.2d 1090, 770 N.Y.S.2d 692), the issue was whether professional banquet waiters were independent contractors or employees within the meaning of the Labor Law. In reaching the determination that they were independent contractors, the Court of Appeals considered five factors: (1) whether the waiter worked at his own convenience; (2) whether he was free to engage in other employment; (3) whether he received fringe benefits; (4) whether he was on the employer's payroll; (5) whether he was on a fixed schedule. Contrary to the Verizon defendants' contentions, these factors are used primarily to distinguish independent contractors from employees. Unlike the Carter v. Dutchess County (735 F2d 8 [2nd Cir]) factors, they do not bear directly on whether workers who are already employed by a primary employer are also employed by a secondary employer. Instead, they help courts determine if particular workers are independent of all employers (see, Zheng v. Liberty Apparel Company, supra at 67-68 [distinguishing the Carter factors from the Superior Care factors used by the federal courts to identify independent contractors]). In Bauin v. Feinberg (6 Misc3d 1038[A], 800 N.Y.S.2d 342, 2005 NY Slip Op 50343[U]), the issue was one of joint employment, and the court applied the economic-reality test found in Carter. That test has four factors: (1) whether the alleged employer had the power to hire and fire the employees; (2) whether it supervised and controlled employee work schedules or conditions of employment; (3) whether it determined the rate and method of payment; (4) whether it maintained employment records. the record in this case reveals that all of these employment responsibilities were exercised by 20/20 rather than Verizon. Accordingly, the court finds that, under the Carter test, Verizon did not jointly employ the plaintiffs. In Zheng v. Liberty Apparel Co. the Second Circuit held that, in determining joint employment, the court's analysis is not limited to the four factors identified in Carter and that the court is free to consider any other factors it deems relevant to its assessment of the economic realities. Relying on Rutherford Food Corp. v. McComb (331 U.S. 722, 67 S. Ct. 1473, 91 L. Ed. 1772), the Second Circuit identified several factors and opined that the joint-employment determination should be based on the circumstances of the whole activity. In Rutherford, the Supreme Court found that a slaughterhouse jointly employed workers who de-boned meat on its premises, despite the fact that a boning supervisor with whom the slaughterhouse had entered into a contract directly controlled the terms and conditions of their employment. In determining that the meat boners were employees of the slaughterhouse, the Supreme Court noted that they did a specialty job on the production line, that their work was a part of the integrated unit of production at the slaughterhouse, that the responsibility under the boning contracts passed from one boning supervisor to another without material changes in the work performed at the slaughterhouse, that the slaughterhouse's premises and equipment were used for the boners' work, that the boners had no business organization that shifted as a unit from one slaughterhouse to another, and that the manager of the slaughterhouse closely monitored the boners' performance and productivity (Zheng v. Liberty Apparel Co., supra at 70).