As for the skill required to perform the job, the premise appears to be that an employer is more likely to engage an independent contractor where a great amount of skill is required. Setting aside the questionable nature of this premise, the real focus under this factor seems to be whether the job requires a skill that is not commonly found in the normal employee pool. Here, while real estate sales requires a great amount of skill and experience, it certainly is not the type of skill that would commonly be lacking in a real estate sales company's pool of employees. Thus, it is not the kind of work that would require the aid of an independent contractor.
Finally, with respect to whether the work was an integral part of the company's business, the premise appears to be that a company is less likely to rely on the performance of independent contractors for its core functions. Surely, real estate sales must be considered an integral part of the operation of a real estate sales company. Orleans concedes this fact. Therefore, even assuming that real estate sales is an occupation that requires great skill and specialization, it is not likely that a real estate sales company would find it necessary to seek outside help in performing the function. Thus, the relevance of skill and specialization are diminished where the work performed is at the core of the company's undertaking.
C. THE INTENTION OF THE PARTIES
Orleans argues that the intention of the parties should carry great weight here because Golden knowingly signed an independent contractor's agreement and, in fact, referred to herself in the pleadings and at deposition as an independent contractor. In support of this argument, Orleans relies on a decision by the Second Circuit Court of Appeals in which the court refused to disregard the corporate form adopted by the parties in favor of a holding that an employee of the corporation was in reality one of several partners. Hyland v. New Haven Radiology Associates, P.C., 794 F.2d 793 (2nd Cir. 1986). Instead, the court reasoned that the parties' decision to form a corporation to employ themselves was entitled to deference. The court concluded, over a strong dissent, that the plaintiff was an employee despite the fact that he exercised control over the corporation as an officer and shareholder.
The Hyland decision can certainly be read to suggest that form should be favored over substance in some circumstances. If that be so, however, this is not such a case. There is considerable authority for the proposition that the parties' view of the relationship is not controlling where the label employed by the parties cannot withstand reasoned scrutiny. See Garrett v. Phillips Mills, Inc., 721 F.2d 979, 982 (4th Cir. 1983) (distinguishing status that is merely the creation of a formal document from status actually recognized in the working relationship); Unger v. Consolidated Foods Corp., 657 F.2d 909, 915 n. 8 (7th Cir. 1981) (noting that relationship identified in contract is not controlling where other factors suggest that language of contract is inaccurate); Spirides v. Reinhardt, 198 U.S. App. D.C. 93, 613 F.2d 826, 832 (D.C. Cir. 1979) (same). While I recognize that the parties' agreement called for an independent contractor relationship, I do not find this factor to be controlling.
D. OTHER CUSTOMARY EMPLOYMENT PRACTICES
The remaining factors under Zippo focus on whether certain customs commonly associated with the employment relationship were practiced by the parties. With respect to the payment of vacation and retirement benefits, it appears that Golden received no such benefits. In addition, Orleans treated her as an independent contractor for tax purposes. Finally, the manner of termination -- without notice -- is consistent with independent contractor status. It should be noted, however, that these practices benefited Orleans and that termination without explanation is perfectly consistent with the notion of employment at will. The relevance of these factors is diminished by the control exerted by Orleans over Golden's daily activities. Apparently, to the extent Golden's independent contractor status existed, it existed for the benefit of Orleans alone.
Orleans provided the work equipment as well as the place of work. The length of her tenure, two years, is consistent with employee status. While she was paid on a commission basis, she was given a weekly draw against the commissions. The manner of payment was thus consistent with Golden's complete dependence upon Orleans for her livelihood.
The hybrid test for determining employee status under the ADEA was not intended to be applied in a mathematical fashion. All of the factors are to be considered in light of the ultimate objective to capture the essence of the relationship at issue. The Hickey court noted:
Of course, as a practical matter the test cannot be rigidly applied. It is impossible to assign to each of these factors a specific and invariably applied weight. Moreover, it is not necessary that evidence exist with respect to each of these factors in order to determine the existence, vel non, of an employment relationship. For instance, evidence on two of these points could be so overwhelming that evidence on the other simply could not overcome their weight.
Hickey v. Arkla Industries, Inc., 699 F.2d 748, 752 (5th Cir. 1983). Here, the evidence reveals that Orleans exerted a high degree of control over the daily activities of the plaintiff. While Orleans treated Golden as an independent contractor for some purposes, it did so only where such treatment served its own purposes. Orleans was apparently unwilling to allow its sales staff to operate independently, probably because sales was such an integral part of the company's business. Golden was tied to Orleans under a contract that required her exclusive allegiance, and this arrangement resulted in her absolute dependence upon Orleans for her livelihood. In light of all the factors discussed above, I hold as a matter of law that the plaintiff was at all relevant times an employee of the defendant. Defendant's Motion for Summary Judgment will be denied. An appropriate Order follows.
The defendant's Answer to Plaintiff's Motion to Strike Orleans' Reply Brief having been presented to this Court and the Court having considered the motion of the Plaintiff and the Defendant's response thereto;
IT IS ORDERED that the Plaintiff's Motion is hereby DENIED.
AND NOW, this 26th day of upon consideration of the Motion for Summary Judgment and the Answer thereto, together with the Affidavits and Memoranda of the parties, it is
ORDERED that the Defendant's Motion for Summary Judgment is Denied, and the trial in the instant matter shall proceed as scheduled.