What is the legal definition of borrowed employee?
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I am prohibited from giving a legal opinion. This service provides information of a general legal nature. I suggest you contact a local attorney who can review all the facts and documents involved. A borrowed employee may be a shared employee when employed by multiple employers. Whether or not someone is considered an employee will be a matter for the court to determine based on all the facts and circumstances involved. The characterization of the employment relationship by the employer will not necessarily prevent someone from being an employee. Whether the relationship is one of employer-employee will depend on the degree of supervision, direction and control the employer has over the services.
All factors must be examined to determine the degree of supervision, direction and control in the employer-employee relationship. An employer controls what will be done and how it will be done, i.e., the manner, means and results.
How an individual is compensated is another indicator of worker status. Employees typically are paid a salary, an hourly rate of pay or a draw against future commissions with no requirement for repayment of unearned commissions. Employees may also receive certain fringe benefits, including an allowance or reimbursement for business or travel expenses.
The nature of the services performed is also significant in determining if a worker is an employee or an independent contractor. Unskilled or casual labor is usually employment because such services are typically subject to supervision. However, even professionals such as doctors and lawyers who have considerable freedom in the performance of their duties can be determined to be employees if they are subject to significant control.
An employment relationship may exist if the employer controls important aspects of the services performed other than results and means. For example, a referral agency usually does not directly supervise the individuals it refers for assignments, but it could be their employer if it controls such important aspects of the services as client contact, the individual's wages and billing and collection from clients.
Courts will look at the various factors to determine independent contractor stauts. Some of these factors may include the following:
* having an established business
* advertising in the electronic and/or print media
* maintaining a listing in the commercial pages of the telephone directory
* using business cards, business stationery, and billheads
* carrying insurance
* maintaining a place of business and making a significant investment in facilities, equipment and supplies
* paying one’s own expenses
* assuming risk for profit or loss in providing services
* determining one’s own schedule
* setting or negotiating own pay rate
* providing services concurrently for other businesses, competitive or non-competitive
* being free to refuse work offers
* being free to hire help
Title VII of the Civil Rights Act of 1964 prohibits discrimination in broad areas of the employment relationship. It applies to most employers engaged in interstate commerce with more than 15 employees, labor organizations, and employment agencies. Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e, et seq., prohibits discrimination in employment on the basis of race, sex, national origin and religion. It also is unlawful under the Act for an employer to take retaliatory action against any individual for opposing employment practices made unlawful by Title VII or for filing a discrimination charge or for testifying or assisting or participating in an investigation, proceeding, or hearing under Title VII. Sex includes pregnancy, childbirth or related medical conditions. It makes it illegal for employers to discriminate in hiring, discharging, compensation, or terms, conditions, and privileges of employment. Employment agencies may not discriminate when hiring or referring applicants. Labor organizations are also prohibited from basing membership or union classifications on race, color, religion, sex, or national origin.
