‘Explaining the Blurred Line Between Employment and Independent Contracting’

Julia Tomassetti, The Contracting/Producing Ambiguity and the Collapse of the Means/Ends Distinction in Employment, 66 South Carolina Law Review 315 (2014), available at SSRN. As the Reporter primarily responsible for the chapter defining the employment relationship in the recently completed Restatement of Employment Law, I thought I had fully considered and taken account of the origins and various instances of judicial confusion in distinguishing employees from independent contractors. Thus, I was especially surprised to have my understanding of the confusion substantially enhanced by Julia Tomassetti’s recent conceptually deep article. Tomassetti argues that an understanding of the unusual and contradictory nature of employment contracts and their development is necessary to explain judicial confusion when defining employment, and that it is not sufficient simply to highlight the challenges posed for courts by the nontraditional work relationships in the modern economy and the many multifactor indeterminate tests that have been developed to supplement the traditional but inadequate ‘right to control the means and manner of work’ test … (more)

[Michael C Harper, JOTWELL, 16 September]

First posted 2015-09-16 14:30:33

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