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Disclaimer:
The Treatise is based upon federal appellate court decisions from 1996
to 2008. We are currently in the process of updating the Treatise. Until
that update is complete, it is possible that certain cases cited in the
Treatise may no longer represent current law.
-------------------------
2.241 Determining which entity (out of
two or more) is the employer
The Tenth Circuit uses the hybrid test to determine which of
two entities is the employer of the plaintiff. The court notes that this test is
most often used in determining whether a plaintiff is an employee or an
independent contractor. The Tenth Circuit explained the hybrid test as follows
in Sizova v. Nat. Institute of Standards & Technology, 282 F.3d 1320 (10th
Cir. 2002) :
Under the hybrid test, the main focus of the court's
inquiry is the employer's right to control the "means and manner" of the
worker's performance. However, the hybrid test also looks at other factors,
including: (1) the kind of occupation at issue, with reference to whether
the work usually is done under the direction of a supervisor or is done by a
specialist without supervision; (2) the skill required in the particular
occupation; (3) whether the employer or the employee furnishes the equipment
used and the place of work; (4) the length of time the individual has
worked; (5) the method of payment, whether by time or by job; (6) the manner
in which the work relationship is terminated; (7) whether annual leave is
afforded; (8) whether the work is an integral part of the business of the
employer; (9) whether the worker accumulates retirement benefits; (10)
whether the employer pays social security taxes; and (11) the intention of
the parties. No single factor is conclusive. Rather, the courts are to look
at the totality of the circumstances surrounding the working relationship
between the parties.
Sizova, 282 F.3d at 1328-1329.
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