Rethinking the Worker Classification Test: Employees, Entrepreneurship, and Empowerment

The structure of the American workplace depends on the ability to distinguish between employees and independent contractors. Unfortunately, the law provides little to guide employers in classifying workers. The legal tests to determine worker status are confusing, yield inconsistent results, and are not suited to the evolving employment relationship. Traditionally, courts examine the amount of control exerted over the putative employee by the employer: The more control exerted by the employer over the work, the more likely it is that the worker will be considered an employee.

Control, however, is not the only factor to examine in determining worker status. Several appellate courts have suggested that another factor--the entrepreneurial opportunity for profit or loss--should play a greater role in classification decisions. In this article, I propose an employee-centric classification test based on the presence of genuine entrepreneurial opportunity. I examine the common elements of entrepreneurship and create a revised worker classification test that accurately reflects the difference between employee and independent contractor.