The 11-Factor Control Test

Determining whether a particular employer “controls” an employee who has other concurrent employment is often difficult without first examining the particular facts and nuances of each employment relationship.  Regulations set forth in the Migrant and Seasonal Agricultural Worker Protection Act (MSAWPA) offer five factors to be considered:

  1. The nature and degree of control of the workers;
  2. The degree of supervision, direct or indirect, of the work;
  3. The power to determine the pay rates or the methods of payment of the workers;
  4. The right, directly or indirectly, to hire, fire, or modify the employment conditions of the workers;
  5. The preparation of payroll and the payment of wages;

Yet this is not a complete list.  Six other “control” factors have been recognized in judicial decisions, including:

  1. The investment in equipment and facilities;
  2. The opportunity for profit and loss;
  3. The permanency and exclusivity of employment;
  4. The degree of skill required to perform the job;
  5. The ownership of property or facilities where work occurred;
  6. The performance of a specialty job within the production line integral to the business.

All 11 factors cited above, including both the regulatory factors of MSAWPA, and the non-regulatory factors found in the case law, have now been combined into a collective test of employee control for determining whether an employer is subject to the Fair Labor Standards Act (FLSA).  To trigger the analysis, an aggrieved employee must allege a joint employment relationship. In fact, it is the employee who has the burden of proof to demonstrate a joint employment status, and in a judicial proceeding, the employee must establish the joint employment inference by a preponderance of the evidence.

 

Read Our Latest Blog Posts

Contact Us Today for a No-Fee Consultation!

Timely, effective legal services with down-to-Earth, common sense advice, provided to individuals, businesses, and organizations.

The legal team at the Law Offices of Mark S. Guralnick is happy to assist you with your legal problems, no matter how big or small. We serve clients throughout the United States and across the world.

Feel free to contact us toll-free at 1-866-337-2900.

    8 College
    Degrees
    6 Specialty
    Certifications
    9 Bar
    Licenses
    10 Law
    Books
    8 Professional
    Awards
    30+ Years of
    Experience
    100+ Published
    Articles

    Licensed as a private detective, Mark Guralnick is a former investigative news reporter, and leverages these skills and experiences to deliver excellent client service while finding smart, practical, cost-effective solutions.

    See What We Can Do For You
    Back to Top