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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 Until that update is complete, it is possible that certain cases cited in the Treatise may no longer represent current law.

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Chapter 2 - Who can be sued?
2.200 Employers
2.240 Joint employer theory

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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