Discussion Questions

timer Asked: Feb 1st, 2019
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Question Description

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")?


Tutor Answer

School: University of Virginia


1. Every business has a contractual obligation to disclose all the terms and conditions of every
business transaction they are undertaking. In addition, it is the offerer that has the right to
disclose all the conditions that direct the business. In this case, businesses can disclose to their
agents that the businesses they carry between themselves are on a contract basis. The contract,
however, has to be fair so that no one side is feeling like they are being discriminated. The agent
or people doing tasks for them have the right to accept or decline the terms and conditions
given to them by the company. Additionally, if the agent accepts the terms and ends up not
following the agreed contract conditions, the consequences should be clear and the agent must
be made aware of the same. Businesses have different reasons as to why they are preferring to
hire an agent on a contractual basis, and therefore, it is up to the agent to accept or reject the

When one speaks about an independent contractor the first thing that might come to mind is
that the job does not have security. However, that is not always the case, there are many factors
that play a role when it comes to independent contractors. One of the main things to consider is
the job description and duties that the job entails. The term independent solely gives a sense of
duty of care where the other party is expected to perform their duties without being interrupted
by the company. On the other hand, the contractor plays a critical role since it gives the
company a sense of power in that, the company can dismiss the contractor if they do not fulfill
their job description.

3. The personal fitness trainer at the gym is the one that will consider themselves to be considered
for employment. This is because the gym is likely to have many clients that will come for their
sessions at the same time, and every client requires the special attention of the special trainer in
order to achieve their goal. On the other hand, the gym instructor needs to create a close
personal relationship with the clients, in order for them to attain their goal. On the other hand,

the hair salon stylist is suitable for independent contractors, since it would be very much easy to
replace such a stylist. Additionally, the stylist does not require to create any special relationship
with the clients, since for every return the clients are bound to change their style with every
visit, and therefore another stylist can be able to deliver the same result as the other can.
4. Employees are covered against several acts which may result in disputes or even life
endangerment. The rights and obligations of the employees are very critical in ensuring that
there is a good relationship between the employers and the employees. The employees are
covered against discrimination, wrongful termination, unsafe workplace, poor wages, and
mandatory overtime. For sexual harassment, workers are covered under Title VII of the Civil
Rights Act of 1964 which prohibits employers from discriminating the employees on the basis of
sex and other grounds. Independent contractors do not enjoy the same federal law that covers
sexual harassment for employees, and therefore they cannot sue for employment
discrimination. However, if an independent contractor can show that he was treated the same
as employees, then he can sue for sexual harassment. Therefore, it is clear to state that
employees receive much better pay, and are covered against many harassment and negative
activities than the independent contractor.
5. According to the employment tax laws, it is the duty of both the employer and the employee to
collect and remit withholding taxes to the Internal Revenue Service (IRS). However, in most
cases, it is the duty of the employer to deduct the employment taxes of the employee and remit
them on his behalf. Employers who do not comply with this employment tax la...

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