*2
Wеary
paid solely upon
a commission
CLAY,
Before MARTIN and
Circuit
basis,
agreed
to meet certain minimum
MILLS,
Judges;
Judge.*
District
Mu-
selling standards set Northwestern
MARTIN, J.,
opinion
higher
tual and
Cochran set
delivered the
Cochran.
Mutual,
MILLS,
J.,
court,
joined.
D.
than
standards
Northwestern
CLAY,
528-38),
do,
permitted
when
(pp.
J.
delivered a
he was
earnings
to meet his minimum
stan-
separate opinion.
failed
Mills,
nois, sitting by designation.
*The Honorable Richard
United States
Judge
District
for the Central District of Illi-
evidence,
dards
1998 and
him.
Cochran fired
we must draw all
in-
reasonable
termination,
At the time of his
Weary was
Weary,
ferences
favor of
as the nonmov-
Shah,
forty years
age. Weary
over
ing party.
filed
1. The that the factor to irrelevant and hiring party any hiring party whether the is in business is almost is in business. to- contract, you pointing dant evidence in the record Q. you agreed that So status. independent independent contractor and ward contractor were an of Mr. employee not an out, points as the dissent recognize, We Mutual, correct? Northwestern not entire Weary’s independence According A. to this document required, He for in ly unrestrained. believe, I the an- what was led stance, comply applicable legal says law if one yes, swer is but the ethical rules and certain administrative the other party has control over guidelines set out in a Northwest Mutual any it doesn’t make dif- party, then authority that manual. That limited con- parties ferent what the to the as Northwest Mutual retained over these themselves, you tract call have work, however, Weary’s is “not pects relationship. employer/employee type of control establishes that, Q. get I confused about Mr. What employer/employee relationship.” Oest your initial Weary, gоing back man, (finding plaintiff 958 F.2d essence, in- you ... comments despite contractor be be an true, tended that to be correct? ing permission from the obtain I— That’s correct. But A. advertising defendant before of defen *5 intended, Q. indepen- to be an You have Ware, 67 products). dant’s See also contractor, you? dent didn’t (holding at 576 insurance salesman changed I But despite A. did. the law independent was an contractor be contract. ing required comply guide various with by company); lines set the insurance Kir added). (Emphasis by Robby Swimfashions, Len 904 F.2d concerning In addition to this evidence (6th Cir.1990) 36, 1990 72322 at **3 WL intent, parties’ replete the record is (Table) (“While required or [defendant] with other evidence—much of which Wea- paper ders and work to be administered on ry indicating himself has admitted — conjunction in [its] forms and with [its] Weary independent contractor was an infringement [plaintiffs] practices, the who, part, right for had the the most by discretion in the affairs of his business did, in control—and fact control—the man- minimal”). requirements these was by accomplished ner and means he authority Mutual’s over Northwestern example, own work. For and as dis- his aspects Weary’s operations those is un in greater cussed in detail below connec- Oestman, derstandable, see 958 F.2d factors, specific tion with the more (reasoning that defendants “have a Weary paid solely was on a commission in controlling substantial interest the ad basis; jobs and, he was free to take other — [they] vertising products of their because fact, in policies approxi- sold insurance may plaintiffs] for [the liable misstate mately compa- fourteen other insurance misrepresentations”), ments or and does nies; he set his own hours and could take that, gen not undermine our conclusion in leisure; employed vacation at his he his eral, Weary controlled the manner and paid own staff and them out of his own job. performed means which he his pocket; he decided whom to solicit for business; space, specific for his own The more factors articulated in paid he office equipment, characterizing Weary car and travel ex- Darden also favor supplies, fac- penses; kept independent and he his own financial rec- contractor. The first required perform tor profit ords and monitored his own relates to the skill just job Schwieger v. Farm sampling question. loss. This is of the abun- Co., any authority Insurance 207 F.3d or discretion regarding Bureau when (8th Cir.2000), worked, found that long except require the court how he heavily periodic in favor of inde- him to attend “weighted] compliance factor meet- in- ings meetings contractor status” where the and sales and to mini- pendent meet an in- mum agent selling Weary “considered herself standards. surance was free professional: she was licensed to take vacatiоn at his leisure and surance did expense, report anyone. the state of Nebraska her own his hours to subject professional to a code of eth- Fifth, Weary fact that paid sole- ics, by professional certified and had been ly upon a commission basis and did not case, Weary In this admit- associations.” salary support earn a lends further to the “highly that the sale of insurance is a ted independent conclusion that he was an con- field,” specialized requiring considerable See, Ware, 578; tractor. e.g., 67 F.3d at He “training,” “education” “skill.” Wolcott, F.2d at 251. that a license re- also admitted state Sixth, regard hiring to the quired in order to sell insurance and that assistants, paying of Weary admits that he had taken licensure examinations he employed his own staff at expense, his own specialized “several” states. held a in hiring, had sole discretion firing and “Series VI” license for the sale securi- matters, compensatiоn and withheld and ties, a Life certifi- Chartered Underwriter remitted taxes to government the federal cation and a business administration de- capacity employer his as the of his staff Thus, gree. weighs this factor favor of Weary points members. out that his affi- contractor status. davit him states Second, the source of instrumentalities secretary twenty hire and maintain a Weary’s and tools used in business was not, per week and he did he would *6 himself, Weary not Northwest Mutual or expense suffer a in reduction his allow- Weary paid Cochran. admits that he however, insignificant, ance. That fact is procured equipment, and his own office says it about nothing because whether service, phone postage, copies internet and Mutual or played Northwestern Cochran paid and automobile. He also for meals Weary’s in hiring paying role assis- prospective with clients and for his attend- only alleges tants. The affidavit that professiоnal training ance at courses. Weary to a pay Cochran hire and Third, twenty respect secretary to the location of to work at least work, Weary’s per he admits that he worked week. either at his home office or at commercial eighth The seventh and factors relate to space office that he rented at his own and tax provision the benefits treat- expense. He did not work at offices Weary places particular emphasis ment. by Mu- owned or controlled Northwestern pro- on the fact that Northwestern Mutual Therefore, tual or this factor Cochran. him health pension vided certain bene-
weighs independent in favor of contractor security it fits and that withheld social Wolcott, (rely- F.2d at 251 status. See taxes from his commissions. As dis- ing upon agent the fact that an insurance however, held, trict court the Internal owned maintained his own office con- permitted Revenue Cоde Northwestern finding indepen- dominium in him to be an provide those benefits and to Mutual to contractor). dent Weary’s withhold those taxes because See,
Fourth, Weary non-employee. e.g., a admits neither status as 3121(d) § “full (permitting Mutual nor had time Northwestern U.S.C. CLAY, Judge, dissenting. not a com- life insurance salesman” who is Circuit an em- employee mon law to be deemed an determining In whether ployee purposés chapter” i.e., “for of this under the “employee” of NML or Cochran — 21, Federal Insurance Contribu- Chapter Act, Employment Age Discrimination 7701(a)(2) Act); § (permit- major tions U.S.C. majority makes two errors. First, majority applicable ting a “full time life insurance salesman misstates important omitting law the two most an employee who is considered “employee”: factors the definition of Chapter 21 to be deemed a purpose job employer’s ability perform- to control statutory ‘employee’ par- who is entitled to еmployer’s ability and the to control ance ticipate group pension and benefit employment opportunities. Both factors plans).” The district court found that “employ- that Plaintiff indicate was NML’s Weary being “admitted to informed of his majority Secondly, ee.” overstates the ‘statutory employee’ status.” The district analysis factors extent to which of other it “[m]ore court found even instructive” yields the conclusion that Plaintiff was not profits deducted his and losses fact, “employee” of NML. these oth- proprietor on his own tax returns as sole ambiguous, er factors are somewhat but on and declared on loan documents that he analysis, they close favor the conclusion self-employed. agree We with the “employee.” that Plaintiff These sway court that also district these factors majority wrong two errors lead the to the the balance in favor of con- disposition. tractor status. I. weigh While least two factors favor majority impor most omits two characterizing Weary an employee— tant factors in the of the definition term
1.e.,
the duration of the
“employee.”
Mutual
When Nationwide
Weary’s
regular
the fact
work was a
Darden,
318, 112
Insurance
v.Co.
503 U.S.
hiring party’s
business2 —those
(1992)
1344, 117
S.Ct.
L.Ed.2d 581
enu
overwhelming
factors do not offset the
evi-
(many
merated numerous factors
of which
compels
opposite
dence that
conclu-
applied
majority),
the first and
sion.
*7
hir
important
most
factor listed was “the
ing party’s right to control the manner and
sum,
hold
Weary
we
was an
by
product
means
which the
is accom
contractor,
employee,
not an
323,
plished.”
112
(quot
Id.
S.Ct. 1344
was, accordingly,
pro-
not entitled to
ing Cmty.
v.
Creative Non-Violence
for
Age
tection under the
Discrimination in
Reid,
730, 751-52,
2166,
490 U.S.
109 S.Ct.
Employment Act. His claim under the Act
(1989)). Also,
Court,
A later case ruled the issue of wheth- outset, At (filed it is 1992) noting worth that the 12, Lilley er or not on March (filed functional standard in Simpson stated by was overruled on March (and little, 1992) Satterfield) reiterated leaves and also clarified the definition of if any, room for considerations of contrac- “employee.” Lilley This Court stated that tual disclaimers employment of an overruled, rela- not because Darden had tionship. contrary This runs major- to the adopted the same that in standard as Lil- ity’s citation to the boilerplate contract’s ley, defining the term “employee”: language attempting to disclaim an em- Darden, Lilley, underly- like defines the ployment relationship in present case. ing employ- common denominator of the See Schwieger also v. Farm Bureau Ins. er/employee rubric employer’s as the Co., (8th Cir.2000) (“The 207 F.3d job ability performance to control of a referring existence contract party to a employment opportunities ag- of the as an independent contractor does not end grieved important individual as the most inquiry, an employer may because many elements be evaluated in by avoid Title affixing VII a label to a resolving assessing the issue after person that capture does not the substance weighing all of the incidents of the rela- (citations employment relationship.”) tionship with no being one factor deci- omitted). quotation and internal marks .... sive Simpson Young, Moreover, v. Ernst & 100 F.3d even the contractual dis- (6th Cir.1996). relevant, The other factors list- claimer were its attempt to avoid importance ed Darden retain but employment none relationship by is belied of the other significant factors is as terminology important other documents. important Information, each the two most Agents factors: The Manual of dis- employer’s ability job per- states, to control tributed to Plaintiff “As a employer’s ability formance and the agent.... to Northwestern Mutual Life You control opportunities. company of a a reputa- has Simpson’s interpretation of being Darden has tion of knowledgeable, caring....” been reiterated Court: ordinary parlance, Under independent contractor would not be con- for the purposes of the ADA and other Rather, sidered “part company.” only Acts, Rights Civil an employer/employee an employee would such designation. merit by considering: is identified Thus, to the extent terminology is relationship, the entire most *8 relevant, it clearly does not NML’s favor important factor being employer’s the position. ability job performance to control and
employment opportunities of ag- the Similarly, majority wrong the is to at- grieved individual. anything tribute signifi- more than token Tennessee, initially F.3d 617 cance to the fact NML that had Satterfield (6th Cir.2002) (citations quota- and internal in convincing succeeded Plaintiff that he omitted). Overall, tion marks “independent the Darden was an Again, contractor.” test, interpreted by in this Court this is irrelevant to functional the standard Simpson Satterfield, and considers numer- in employed defining “employee” factors, ous important Quinn, the most of which status. See also Armbruster v. (6th Cir.1983) daily in other man- (“Though operations Plaintiffs perform- parties provided view the ners. The contract
the manner which NML, requirements as to wheth ance instituted relationship is some evidence representative requirements potentially higher the manufacturer’s addition to er (Cochran). Thus, Agent case will be deemed an ‘em particular from a General purposes, for Title it is own ployee’ VII Plaintiff was not free to determine his . question.”) level, determinative of to maintain performance he wished Also, NML’s his with NML. multi-factored, analysis A functional Self-Study Agents’ pro- “Fastraek Guide” analysis begins governs this case. regarding rules the use of e- vided detailed important with the first of the two most example, mail and the internet. For NML factors, job ability perform- to control stated, may via “Illustrations not be sent Here, that the con- ance. it is instructive 871.) (J.A. at E-mail solicitations e-mail.” right adopt to tract reserved NML subject to and other solicitations were Agent’s free- regulations limiting Special (J.A. 871) (“Any at variable NML review. provision to conduct business. This dom mul- product-related e-mail that is sent to gave widespread “ability NML to control individuals, collectively either or indi- tiple at job performance.” Simpson, 100 F.3d same cen- vidually, repeats and which added). 442 (emphasis message tral or theme is considered sales ability to Beyond retaining general such, it material. As must be reviewed job by adopting regu performance control described approved before use as lations, Plaintiff NML’s contract with also above.”). Plaintiff not allowed to de- specific more expressly reserved mecha velop presenta- his own illustrations for control, and NML undertook nisms of (J.A. 760) tions, independently of NML. at measures, including adoption of de manual, (agent’s stаting, “To ensure accu- regulations, actually tailed controlled racy, only produced use illustrations performance. Plaintiffs Plaintiffs record- Mutual through the Northwestern LINK submitting appli of insurance keeping and system.”). subject Plaintiff proposal review, subject according cations were to precise proper presenta- rules on sales contract, guidelines. to NML In the NML (“Do 760) tions. not ... charac- expressly right require reserved the terize a lower-than-current-scale illustra- relating Plaintiff to surrender “all records” ,”). tion as a ‘worst case’ scenario.... As transactions NML to Cochran. seen, highly can be these rules de- were 464) (item Records). (J.A. at they daily specific; governed tailed and t Managemen Field Business Conduct operations. Guidelines, advised NML: pre “You must be aware of the need to factor, key employer’s The second vent, rectify any detect from deviation ability employment opрortuni- to control ” (J.A. Way.’ ‘Northwestern Mutual ties, evaluates whether the individual is occasion, On reviewed Plain engage employment, in other out- free Plaintiff, tiffs records: received a letter given relationship. pres- side of a In the Ertel, Specialist from Diane the Mar case, permission ent written from North- NML, critiquing ket Conduct Division of Services, western Mutual Investment LLC file-keeping advising Plaintiffs him of (“NMIS”), an affiliate of was re- *9 procedures expected that he was to make. quired any activity, for outside business Beyond record-keeping regulations, including unpaid including activities and ability NML exercised its to influence activities unrelated to the insurance busi- compa- other insurance Agents’ Self-Study cies for numerous The “Fastrack ness. nies. Plaintiffs work for other insurance states: Guide” companies might be taken to show that you engage any “outside busi- Before employment opportuni- Plaintiff had other your activity” is not a ness ties. and sеcurities busi- normal insurance
ness, permis- written you must obtain However, question the standard in is Mutual from NMIS [Northwestern sion ability op- to control such employer’s Services, re- This is LLC]. Investment and contract portunities. regulation compensation or not quired whether language quoted above evince NML’s activity. for the Note received “ability” employment, to limit outside re- all outside business ac- requires NASD gardless actually chose whether on Form U-4 to be disclosed tivities ability. The record does exercise include, but business activities Outside requests, contain permission not written not limited to: grant- they may but have been made and otherwise, Full-time, presumably NML and part-time, self-employ- or ed— could have asserted this as the any away from North- Cochran ment of sort termination, instead of fail- reason for the western Mutual and NMIS. If production requirements. ure to meet director, officer, trustee, Becoming a permission, Plaintiff did not obtаin such any organization or partner, etc. of Plaintiff breached the contract —this then business, including (public private) or might provide grounds separate legal for a organizations. and charitable churches not prove action but this does marketing Participating in multi-level ability that NML lacked the to control Amway, Examples include programs. employment opportunities, the context Services, Legal Mary Kay, Prepaid “employee” standard for analysis People’s Network Inc./The language clearly status. The contractual Showcase, (PPLSI/TPN), Rexall etc. granted ability NML the to control Plain- (J.A. 873) (emphasis original). opportunities. tiffs outside work a relevant The contract also contains Moreover, there is no clear indication dealing”: provision “exclusive compa- that Plaintiffs sales work for other other Agent shall do no business “employment opportuni- nies constituted contracts, аnnuity issues company which ties,” contrac- “independent opposed disability or life insurance or income By the definition of opportunities. tor” policies, except in connection insurance here, no evidence “employment” there is Applications respect per- with with companies insurance con- the other by the sons who are then insured Com- job per- trolled the manner and means the limit it will issue on them or pany to permission written formance or acceptable are otherwise not who to sell insurance for NML for Plaintiff Company.... insurance fact, the other sales companies. other quoted Both here provisions to have been more relationships appear ability limit and grant NML the control companies minimal: the other insurance employment opportunities. Plaintiffs Security, retirement pay Social did insurance; benefits, nor did further or health exclusivity But the issuе merits out, production require- have majority points companies other analysis. As the relationships these ments. Because selling addition to Northwestern Mutual than more limited companies other were policies, poli- Plaintiff also sold insurance *10 532 Cir.2000) (“First, ‘the skill re- regarding it is ob- relationship with
Plaintiffs
dispute that
Schwieger does not
relationships
quired,’
of the other
vious that
Farm Bu-
nature,
relationship
her
throughout
then so too
an employment
were of
an insurance
reau she considered herself
with NML. As
Plaintiffs
by the state
she was licensed
result,
professional:
in
Plain-
way
no
there is
expense,
at her own
was sub-
can
of Nebraska
companies
other
be
tiffs work for
ethics, and
ject
professional
a code of
lacking the
.to
illustrating NML’s
cited as
associa-
by professional
certified
had been
ability
employment
control Plaintiffs
Thus,
heavily in
weighs
this factor
tions.
opportunities.
status.”);
contractor
independent
fаvor of
Hence,
maintained
it is clear that NML
Inc.,
Fed.Appx.
54
Reppert,
Mulzet v. R.L.
opportu-
to control
ability
(3rd
11, 2002),
U.S.App.
2002
Cir. Dec.
nities,
notwithstanding
possibility
(“The
factor,
LEXIS
at *3
first
may
granted
permis-
written
have
[alleged employer]
in
required,
skill
cuts
independent
in
engage
Plaintiff to
sion for
Court found
Reppert’s favor. The District
companies
work for other
contractor
required
hang drywall
that the skill
that Plain-
notwithstanding
possibility
indepen-
many years of
based on Mulzet’s
failing
get
permission)
written
(by
tiff
any teaching
experience, rather than
dent
relating to
provisions
contractual
breached
(citations
(unpublished)
Reppert.”)
work.
ability to control outside
NML’s
omitted).
Hence,
key
favor of the
both of the
factors
selling
insurance is best
The skill
Plaintiff was NML’s em-
conclusion that
one,
general
specific
conceived of as
ployee.
explains
This
Plaintiffs
NML’s business.
II.
selling
work
insurance
contemporaneous
hand,
the other
compаnies.
for other
On
Darden factors must be con-
The other
Plaintiff, through
train
helped
sidered,
im-
although none of them is as
reviews, monthly
weekly performance
individually, as either of the two
portant,
seminars,
meetings, annual
training
Satterfield,
key
analyzed
factors
above.
1202.) Thus,
meetings.
other
617;
tion of whether
Also,
factor
signifi
this
is of limited
to the
ee.” Due
similarities
Cochran’s
cance, given
prevalence
in our current
contracts
it is
positions,
and Plaintiffs
and
economy
arrangements whereby
of
em
“employ-
that if Plaintiff
indisputable
was
(from
ployees telecommute
home
other
NML,
If
then so too
Cochran.
ee” of
locations). E.g.,
Wells,
remote
Susan J.
NML,
“employee”
an
of
then
Cochran was
Workers,
Stay-Home
For
Speed Bumps
he of-
the tools and instrumentalities that
Telecommute,
Times,
17,
Aug.
on the
N.Y.
Plaintiff can be attributed to
fered to
http://commtech-
available
Although neither
party
NML.
briefed
lab.msu.edu/Humans/heeter/PortalReports
relationship
issue of Cochran’s
(“Forty-two
/NYTimesTelecommute.html
possibility
employee
he was an
percent
companies
of various
have
sizes
NML must be entertained.
telecommuting arrangements, according to
here,
Regardless
Cochran’s role
addi-
a
of 305
study
North American busi
pre-
and
tionally,
approved
Plaintiff cites
Corp.,
ness executives
the Olsten
pared marketing literature as instrumen- Melville, N.Y., staffing
compa
services
tools. Plaintiff
an
talities and
stated
ny....
Ameri
Estimates
number of
affidavit, “Until
I
required
can
range
telecommuters
from 9 million to
supply
prod-
requisitions
send all
for NML
million.”).
This factor is not cited as
through my
At all
general agent.
ucts
Simpson,
relevant in
Finally, as the Also, relationship. Special contractor periodic meetings, to attend fully renewal commissions did not Agent’s which, course, meant that did agent until the worked for NML vest to work at not have discretion to decline long- years promote would meetings. fifteen the time of —this evidence, at all precise this Court not forth this reason- relevant 1. Plaintiff never sets Thus, majority ing pre- claims in his brief. Plaintiff’s failure to make the bound that, from meet- that Plaintiff admits aside require- argument performance cise as to ings, no control over hours. NML exercised dictating working ments hours. But, presented given Plaintiff has all of appear hiring party term would x.Whether of an nature. more is in business Hence, although the faсtor still favors As the majority correctly states, paid since Plaintiff commis- (This factor is of limited relevance. factor sion, salary, the other considerations is not cited as in Simpson relevant appear temper the conclusion. Ernst Young, & 100 F.3d at party’s hiring viii.The hired role in *13 paying
and
assistants
provision
employee
xi.The
of
benefits
states,
Plaintiff
in an affidavit: “Be-
NML withheld
Security
paid
Social
1976,
1973 and
Mr. Cochran
tween
hired
retirement benefits and health insurance.
paid
my secretary....
for
Between
apparently
NML
set aside fund for Plain-
1976 and
Mr.
office man-
Cochran’s
tiff that was termed the “Persistency Fee
I
ager
my secretary
respon-
hired
and was
governed
Guarantee Fund”
by
the
(J.A.
salary.”
for portion
sible
a
of her
Employee
Retirement
Income Security
penalize
After
would
Cochran
(“ERISA”).
(Plain-
862-68);
Act
having
secretary
Plaintiff
not
a
for at
twenty
5).
week.
per
Also,
least
hours
Cochran’s
tiffs Brief at
NML offered a
paying
secretary
for a
a
requiring
or
sec- definеd benefit plan,
Agent’s
the
Retire-
retary
of
begs
question
the
Plaintiffs rela-
Plan,
ment
also governed by ERISA.
tionship
NML,
for the reasons stated This would all favor Plaintiff.
factor, directly
the second
under
Darden
suggests
NML
it
that
was allowed to
above.
group
contribute
benefits to Plaintiff and
majority
The
states that Cochran’s re-
Security
to withhold Social
only
taxes
be-
a
quiring
secretary
Plaintiff to hire
“is
cause of
“indepen-
Plaintiffs status as an
however,
insignificant,
says
because it
dent contractor.” NML cites two tax defi-
nothing about whether
Mu-
Northwestern
nitions of
that
“employee”
include both
or
played any
tual
Cochran
role in hiring
employees
common-law
and insurance
assistants;
paying Weary’s
only
it
es-
3121(d)(3)(B),
salespersons.
§§
that
U.S.C.
tablishes
7701(a)(20).
pay
secretary
hire and
a
to work at
support
least
There is no
twenty
per
week.” This is falla-
here, in
position
cited;
NML’s
the sources
only
cious.
had
limited role in rather, the tax
that
court case
NML сites
assistants,
hiring
only
if the
reason that he
Security
indicates that Social
taxes could
a secretary
employer’s
hired
was his
re-
ordinary,
be withheld for an
common-law
quirement
he do so.
Miller,
employee. Ewens &
Inc. v.
Due to
ambiguities
as to Cochran’s Comm’r,
117 T.C.
mediate
due to
un-
Conclusion
Cochran’s
clear
with NML.
ii
See factors
The
first
opinion
set forth
(source
(role
instrumentalities),
viii
the two
important
most
factors of the anal-
assistants).
hiring
However,
and paying
ysis. These factors both favored “employ-
reality,
in all
it
difficult
not to view these
ee” status: NML had
ability
to control
favoring
factors as
“employee” status.
job performance
ability
and the
to control
only
Thе
basis for
relationship be-
employment opportunities. The second
tween Plaintiff and Cochran
through
part of the opinion examined the remain-
expressly delegated
NML. NML
authori-
(aside
ing Darden factors
from the two
Cochran,
ty to
including specific powers,
ones).
most
important
most,
At
ability
such as the
performance
to set
re-
might show that
these remaining factors
quirements
above
set
those
NML—this
split,
balance;
however,
such an
course,
power,
ultimately gave rise to
ambiguous showing would not overcome
(with
this lawsuit
allegations
Plaintiffs
the two
important
most
factors. More-
performance
that Cochran’s
requirements
over, in light of
delegation
NML’s
to Coch-
were discriminatory).
personnel
ran
power
work,
control Plaintiffs
it
structure here —with a supervisor exercis-
appear
does not
that NML
legiti-
can even
ing
subordinate,
control over a
sharing
*15
mately
a showing
make
remaining
the
(factor ii),
tools and
dictating
instruments
evenly
factors are
split; the remaining fac-
(factor iii),
work location
requiring
tors,
balance,
on
favor “employee” status
that the subordinate
a secretary
hire
for a
for Plaintiff.
(factor
minimum twenty
of
per
week
viii)
delegated control that
—indicates
Finally,
important
it is
to note
larger
characteristic of corporate employment re-
framework in which
analysis
takes
lationships.3 To the considerable extent
place.
In Lilley
Corp.,
v. BTM
this Court
Plaintiff,
that Cochran
through
controlled
stated that
term ‘employee’
“[t]he
is to be
authority expressly
delegated by
given a broad construction in order to
both Cochran and Plaintiff may have been
effectuate the remedial purposes of the
employees of NML.
ADEA.”
Thus, in analysis conclusion to the ation is not necessary to reach the conclu- (aside remaining Darden factors from sion that an “employee” of impоrtant factors, NML; two most analyzed in but the principle enunciated in Lil- part above), the first of opinion, ley provides even support more for the remaining yield that, factors that an immediate conclusion to the extent there produce split result, conclusion a with four large ambiguities regarding certain factors on each side. signifi- factors, Two other analysis relevant should be cant factors appeared ambiguous, due to resolved of a in favor conclusion that Plain- role; but, upon Cochran’s scrutiny, closer tiff was an “employee” of NML. On the light us, the fact that Cochran’s control record reasonably before it cannot of Plaintiff delegated that, balance, argued defined fac- relevant corporate employment 3. A agent.... is also Life company You are Agents evinced Manual of reputation being knowledgeable, Information has a car- (J.A. 754) added). ing. statement that (emphasis "[a]s Northwestern Mutual ...” Plaintiffs “em- unambiguously
tors defeat
ployee” status. reasons, I re-
For aforementioned
spectfully dissent. HICKS, Petitioner-Appellee,
Michael STRAUB, Warden, M.
Dennis
Respondent-Appellant.
No. 03-1124. Appeals,
United States Court
Sixth Circuit. 18, 2004.
Argued: March July 2004.
Decided Filed: