Answer each question with a word count of a minimum of 150 each in detail
1.There may be a decided preferrence among businesses to treat its agents as independent contractors rather than employees. The determination comes down to a matter of control and how much control relative to independence businesses want when it comes to people doing things for them.
From a purely contractual point of view, would an agreement specifying independent contractor status between a business and a person doing tasks for the business be sufficient in and of itself? Possibly, but if not, why not?
2. There are no hard and fast rules strictly speaking on the whether one is an independent contractor or an employee, but when you are talking about who controls what and how much control, that is the rule.
Nevertheless, the IRS itself, always looking to help us, has published guidance that I am passing along as well. One of the attachments is the so-called 20-factors test, published by the IRS but the work of a Congressional Committee in 2007. The "20 Factors" is a simplified version of what the IRS considers three predominant considerations on the issue of "control": behavioral, financial, and type of relationship. Lastly, the IRS will determine the status on completion of the Form SS-8, which I have also attached for convenience.
As pointed out, the focus on there being an agreement so designating the relationship as that of independent contractor is not determinative by itself. Put another way, the focus of the inquiry is on the term "independent" rather than on the term "contractor."
Looking at the factors together, which would you think the more important or helpful and why?
3. How would you analyze this scenarios of the hair salon stylist vs the personal fitness trainer at a gym. What would be the basis for considering either independent contractors? What would be the counter argument: who would like to argue that they should be considered employees instead?
4. what are the names of the laws that you are covered by if you are an employee (not an independent contractor)? Which law governs sexual harassment, for example? (That is another aspect of the assignment this week). If you are an independent contractor, on the other hand, it is good to know which laws don't apply--but otherwise, which do. What about harassment? Is it "open season" on you? inquiring minds.....
5. So that takes care of the "Let's agree you pay your own taxes, ok?" And you cannot waive that. This is like a "waiver of liability" in tort law strict products liability. You can waive liability for suing the MLB team for being hit by a foul ball in their stands at a ball game, but not the lawn mower manufacturer if the blade breaks off and gashes into your leg/foot--not even if they offer the mower at half price.....I mean, you can say--even write down and sign, (OMG, REALLY??!!!)--that you agree to it; and you can say "ok" to the offer from the employer "to pay your own taxes (100%)", but it is of no legal effect--and the principal can be fined, significantly, for following through, even though you agreed. Why is that? (Even if you "don't know," assume that you do--which is to say, does such a law make sense? How so? (and if not, why not?]
6. a PT employee is still an employee, not an independent contractor. So it still comes back to which type of agent--and which type of "implied at law" terms are read into the agreement. For an independent contractor, there may be implied in fact terms (as was described last week) but this week we deal with implied at law contract terms. The problem, though is when is it one vs the other. Even PT employees are still different from IC (independent contractors) and still have more 'read in" to their agreements by operation of law. You can work 1,000 hours a year an be an IC and you can work 20 hours a year and be an employee--so it isn't strictly speaking the number of hours as such.
Class: If not the number of hours worked (in a week, month, year), then what?
7. Contracts, including contracts of employment, whether that of independent contractors or employees, do not have to be fair; they just have to be agreed to. Relating this discussion to what we discussed last week (but didn't make explicit), nothing in the requirements for contracts (agreement, consideration, capacity and legality) pertains to fairness, nothing whatsoever, which means that contracts, to be contracts and enforceable, can be unfair, it follows.
Non-discrimination law is not, strictly speaking about fairness; it is a limitation on the terms of the agreement, for social purpose reasons. Still, it has nothing to do with fairness, as such.
Why don't contracts, and for our purposes this week, work agreements (whether as employees or independent contractors) have to be fair? Constitutional law, the 14th Amendment in particular, requires equality and perhaps a degree of what people think of as fairness (possibly) but aside from that, which only applies to how the government treats individuals, there is no general requirement of fairness as between private individuals (including companies).
Your employers do not have to treat you fairly. They are only prohibited from choices based on certain classifications (or characteristics) but that does not mean fairly. There is no general fairness requirement.
This is a matter of ethics or morality, not necessarily law, in other words--not that it could not be law (because we get to make the law, don't we?). This then brings what we were discussing in Week One home to roost, so to speak, and makes it very personal, at least for many people.
Why is fairness not required, legally? Should it be?
8. What then is the basis, or purpose, of Title VII limiting discrimination of certain categories, in effect limiting private organizations' (and individuals) choices? Why those choices of categories and not others? To Katherine's point: what is unfair (morally) about discrimination? Yes, it is unlawful to discriminate on the basis of race, for example. It is unlawful because it is wrong. Why is it wrong?
9. Is that something people agree on, or is it a matter of "everyone has their own ideas about what is and is not "dehumanizing."? Is there some moral consensus here or we should steer clear of such "moral concerns" (because everyone has their own view about what is and what is not "dehumanizing")?