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1.9.4.1 Miscellaneous Issues Employee/Independent Contractor It is not always clear under the law whether a person is an "employee" or not, or who the "employer" is. Some people, for example, perform services for others while remaining self employed as “independent contractors.”So, a preliminary issue for your decision in this instance is the question whether [ ] was an employee of [ ], or whether [ ] was, instead, an independent contractor. You should resolve this question in light of the economic realities of the entire relationship of the parties, and there are a number of factors you must consider, based on all the evidence in the case. In an employer/employee relationship, the employer has the right to control the work of the employee, and to set the means and manner in which the work is done, as well as the hours of work. In contrast, an independent contractor generally must accomplish a certain work assignment within a desired time, but the details, means, and manner by which that assignment is accomplished are determined by the independent contractor, normally using special skills necessary to perform that kind of work.An employee is usually paid on a time worked, piecework, or commission basis, and usually has vacation or sick time allowed, as well as insurance, retirement, and other fringe benefits provided by the employer. An independent contractor is ordinarily paid an agreed or set amount, or according to an agreed formula, for a given task or job. An independent contractor generally is one who has the opportunity to make a profit or faces a risk of taking a loss, while an employee generally is compensated at a predetermined rate, has no risk of loss, and has social security taxes paid by the employer.An independent contractor usually provides the tools, equipment, and supplies necessary to do the job, while an employee usually does not. Independent contractors generally offer their services to the public or others in a particular industry, have procured necessary licenses for the carrying on of their activities, and may have a business name or listing in the phone book. Employees ordinarily work only for one or just a few employers, and do not have business names or listings. The intent of the parties is, of course, always important, but the description the parties themselves give to their relationship is not controlling; substance governs over form.Consideration of all of the circumstances surrounding the work relationship is essential, and no one factor is determinative. Nevertheless, the extent of the right to control the means and manner of the worker's performance is the most important factor.ANNOTATIONS AND COMMENTSThe central issue in determining employee/independent contractor status is the hiring party’s right to control the manner and means by which the work is accomplished. Garcia v. Copenhaver, Bell & Associates, M.D.’s, P.A., 104 F.3d 1256 (11th Cir. 1997). Whether a person is an employee or an independent contractor is a question of fact for the jury. Id. In cases under the Fair Labor Standards Act, the Court of Appeals has applied an “economic realities” test under which persons are considered employees if they “are dependent upon the business to which they render service.” Mednick v. Albert Enterprises, Inc., 508 F.2d 297, 299-300 (5th Cir. 1975). In other contexts the Court has adopted a standard that combines the “economic realities” test and the common law test. Cobb v. Sun Papers, Inc., 673 F.2d 337 (11th Cir.) cert. denied, 459 U.S. 874, 103 S.Ct. 163, 74 L.Ed.2d 135 (1982). See also, Doughtrey v. Honeywell, Inc., 3 F.3d 1488 (11th Cir. 1993). This instruction is in that form. See also, Federal Claims Instruction No. 10.3, infra.