Is Your Independent Contractor Agreement Like an Emotional Support Peacock?


Image from The Jet Set

My favorite news story from last week was United Airlines’ decision not to allow a woman to fly with her emotional support peacock. Peacocks are pretty, strutting their feathery stuff to attract the smokin’ hot peafowl ladies, but they’re not cuddly, and they don’t belong in the tight quarters of commercial aircraft.

I did my research here, and I can confirm they’re not even good house pets. According to an Information Leaflet published by the Wrexham County (U.K.) Borough Council, peafowl have not taken well to modern methods of human transport. The Leaflet warns potential peafowl pet owners, “Peafowl for some reason are fond of cars and enjoy standing on them. They will also attack their reflection in cars and cause damage by scratching and pecking them.” They also have a “very loud high-pitched meow like call.”

None of this sounds like what I want in a seatmate on a commuter flight out of Newark.

Anyway, the point here is that looking pretty isn’t enough. The same is true for independent contractor agreements. Too many agreements have pretty off-the-shelf language, proclaiming for the world that both parties agree the worker is a contractor, not an employee, and threatening to emit a very loud high-pitched meow like call toward anyone who alleges otherwise.

But none of that is particularly helpful when trying to defend a claim of independent contractor misclassification. It’s the facts of the relationship that matter, not the labels.

Who is my employee? The determination of Independent Contractor vs. Employee is made by applying the facts to one of a multitude of tests, depending on which law applies.

  • To see if someone is an employee under federal tax, discrimination, or employee benefits law, a Right to Control Test is applied.
  • To see if someone is an employee under federal wage and hour law (minimum wage, overtime), an Economic Realities Test is applied.
  • To see if someone is an employee under unemployment law or workers compensation law, an ABC Test might be used. Or a Right to Control Test. Or some other variant.
  • State laws use still further tests.

My point is that you should not gain emotional support from a pretty contract. Make sure the facts of the relationship are consistent with employee status, no matter what your contract says. And never bring peafowl on a plane. (Or snakes.) [Click here for TV-version of classic line, ruined by censors.]

For more information on independent contractor issues and other labor and employment developments to watch in 2018, join me in Los Angeles on Feb. 27 or Cincinnati on March 28 for the 2018 BakerHostetler Master Class on Labor Relations and Employment Law: A Time for Change. Attendance is complimentary, but advance registration is required. Please email me if you plan to attend,, and list my name in your RSVP so I can be sure to look for you.

© 2018 Todd Lebowitz, posted on, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.

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