1. Application of Law (4 pages)~

The main law presented in the case is the Fair Labor Standard Act 29 U.S.C. 201. It protects workers in private sector for overtime pay, minimum wage and recordkeeping and young employment no matter it’s part-time or full-time employment. Under FLSA of 1938, section 203(e) and (m) appear in the case, section 203 (e) protects people as individual who has trade or commerce in any state of the United States as an employer which directly related to the interest but does not belong to any labor organizations.  203(m) mentions that the wage paid has to be reasonable. Cash wage for employee should not be less than the cash wage required, and the additional amount of tips received by employees should be equal to cash wage and section 206 states minimum wage. Section 206(a) says that the minimum wage has to be (a) $5.85 an hour beginning on the 60th day after May 25, 2007; (b) $6.55 an hour, beginning 12 months after that 60th day; and (c) $7.25 an hour, beginning 24 months after that 60th day (FLSA).
FLSA section 255 represents the statute of limitation, which proforms of any causes like unpaid minimum wage, compensation and liquidated damage under FLSA, The Walsh-Healey Act and Bacon-Davis Act. In addition, the 29 U.S. codeֆ 216(b) is mentioned in the case; this code deals with penalties. Code 216(b) states that any employer who violates this code is liable to the employee or employer affected in the amount of their unpaid minimum wages in this case. The employer who violates this section will be liable to paid for damages, attorney’s fees and costs. Next, the 28 U.S.C 1331 & 1333 which deals with the legal information institute. Under this code the District courts have primary “jurisdiction of all civil actions arising under the constitution, laws, or treaties of the United States (Law, US Code).
Also, the code  28 U.S. Code $ 1391 applies to this case. Code 1391 discuss the venue for Individuals or corporations, transfer of venue, and full venue. Venue deals with locality of a lawsuit that is, in which locale a lawsuit may be filed or commenced. This code involves decision of whether the federal or state court is appropriate for this case. Moreover,, the case mentions that Portal to Portal Act as well. Portal-to-Portal Act is a specific law under FLSA, which also coded 29 U.S.C. §§ 251 to 262. Portal-to-Portal Act which “clarifies that certain activities are generally not compensable working time under the FLSA.” 29 U. S. Code § 254 deals with the relief from liability and punishment under the Fair labor Standards for a failure to pay minimum wage or overtime compensation. Some of the activities that are compensatable are: riding, traveling or walking  to and from the actual place of performance of the principal activity which employees which employed is to perform, and activities that are preliminary to or postliminary to said principal activities which occurred either prior to the time of any particular workday.
Next, law 29 U.S. Code § 255 enforces any cause of action for unpaid minimum wages or liquidated damages, Statute of limitations.  The plaintiff may take action against the defendant within two years after the cause of action accrued if the cause took action after may 14, 1947.  However if the action accrued prior to May 14, 1947 the case can be commenced either two years after the cause of action accrued or the period prescribed by the applicable Statute of limitations.  Portal to Portal Act, 29 U.S. Code §  257 deals with the limitations that applied to any individual who has “not been specifically named as a party plaintiff of the action prior to the expiration of ane hundred and twenty days after may 14, 1947.”  Code 29 U.S.C §258 defines trust on the past administrative disposal. This section states that before May 14, 1947, “no employer shall be subject to any liability or punishment for or on account of the failure of the employer to pay minimum wages or overtime compensation under the Fair Labor Standards Act of 1938, as amended [29 U.S.C. 201 et seq.], the Walsh-Healey Act, or the Bacon-Davis Act”. if employer argues and proves that his or her negligence was in good faith and it is rely on administrative ruling or regulations.
The last law code mentioned in the case under the Portal-to-Portal Act is the 29 U.S.C 260 which deals with the recovery of unpaid overtime compensation, or liquidated damages under the Fair Labor Standards Act.  If the defendant shows to the satisfaction of the court that  all actions taken were in good faid and did not violate the Fair Labor Act, the court may award no liquidated damages. Code 29 C.F.R. 785.47 explains when working time records were not showed in a substantial and important time period. If a working time record is not showing on the scheduled working hours, it might be disregarded because it cannot be an actual administration based on the payroll purposes.
Under the common law if an individual performance any type of business for anyone is considered as employee; Therefore, to determine if an individual is considered as an independent contractor or employee under the common law, 20 factors categorize under three general principle are analyzed.  The first principal is behavior control which includes: Instructions, training, integration, order or sequence set, hiring, supervising, and paying assistants, furnishing of tools and materials, set hours of work, full time required and ora or written reports are guides that help develop the behavior control.  First, Rev. Rul. 68-598, 1968-2 C.B. 464, and Rev. Rul. 66-381, 1966-2 C.B. 449 states that if a worker is required to perform under someone else instruction of when, where and how to work is formerly an employee. Rev. Rul. 70-630, 1970-2 C.B. 229 mentions that when formal or informal training is provided to an individual by a more experienced employee it indicates that “the person or persons for whom the services are performed want the services in a particular method or manner.”  When a worker integrates the service of a worker into the business, it demonstrates that the worker is working under directions and control of the employer. Also, when the success of a business depends on the performance of the worker, the owner of the business has some control of the worker, United States v. Silk, 331 U.S. 704 (1947), 1947-2 C.B. 167, Weber v. Commissioner, 103 TC 378 (1994).  When the sequence or order in which a worker must performace a service is determined by the person to whom the service is provided, it demonstrates that workers must follow the established routines and schedules that the person whom the service is provided must be followed.  Rev. Rul. 63-115, 1963-1 C.B. 178, with Rev. Rul. 55-593 1955-2 C.B. 610 mentions that if an a person for whom service is being provided hired, pay assistants and supervise, it demonstrates that person has control over the worker. On the other hand, if the worker is the one who supervise, payw and hires  “pursuant to a contract under which the worker agrees to provide material and labor and under which the worker is responsible only for the attainment of a result” represents an independent contractor (ECFA, ). When significant tools, material and other type of equipment is provided by the person who the work is bing performance it expose an employer-employee relationship. In addition, when the there is a establishment of set of hours of work is established by the person who the service is being provide is a factor of control. The amount of time required to work is also a factor that determines the employer-employee relationship. When the worker is required to work full time for the business of the person for whom the service is being performance, that person has control over the worker. However, when the worker chooses what the time, when and for whom to work is considered a independent contractor Rev. Rul. 56-694, 1956-2 C.B. 694.The last factor that shape the behavior control is oral and written reports. Control over the worker is demonstrated when the person for whom the job is being  performance requires to submit an oral and written report about the job being performed, it shows control of the person, Rev. Rul. 70-309, 1970-1 C.B. 199, and Rev. Rul. 68-248, 1968-1 C.B. 431.
The second principle is financial control which including payment by hour, week, or month, significant investment, realization of profit or loss, payment of business and/or travel expenses, making service available to the general public and working for more than one firm at a time. Payment by hour, week, or month which is coded Rul. 74-389, 1974-2 C.B. 330, states that payment made only for a job or commission of the work normally shows the workers are independent contractors. If the payment is made by a certain hours, weeks, or months, then it would be considered as employees. Code Rev. Rul. 71-524 explains for significant investment, means that independent contractor will be considered when the facilities in the workplace are invested by worker, yet the workers are not responsible for maintenance of those facilities. Otherwise, fewer investment in facilities means that workers are actually depending on service for the facilities are considered as employee-employer relationship. Realization on profit or loss is also coded as Rev. Rul. 70-309, it states that if the workers’ pays are based on their performances, those workers are employees. In addition, employer also has the right to control the expense of the business. Next, Rev. Rul. 70-572, 1970-2 C.B. 221 declares that independent contractor has the freedom of making his or her service outside of one workplace on a usual and corresponding basis. Moreover, Rev. Rul. 70-572, 1970-2 C.B. 221, as the last factor under financial control,claims that independent contractor also has the right to perform his or her service in different places with different people at the same time.
Lastly, employee or independent contractors are determined by a third factor, Relationship of the parties. Five categorize fall under this factor. The first one right to discharge, which demonstrates that the worker is an employee and must obey the employer’s instructions if the worker is being fired. However, an independent contractor cannot be dismissed as long they work meets the contract specification Rev. Rul. 75-41, 1975-1 C.B. 323. Also, when the worker has the right to end his or her relationship with the person for whom the service is being performance, an employee – employer relationship is being presented Rev. Rul. 70-309.  Also, a continuing relationship between the worker and the employer demonstrates an employer – employee relationship. Service rendered personally represented by code Rev. Rul. 55-695, 1955-2 C.B. 410, explains a situation when the service is based on personal interest on the method that used to achieve the work and goals, the person will be seen as employer – employee.  The last factor falls under the principle of relationship of the parties is doing work on employer’s premises. It is coded as Rev. Rul. 56-660, 1956-2 C.B. 693, and it states that if a work or service was assigned by employer and could be finished in anywhere, it means that they are actually going through  the employer-employee relationship because employer controls over the employees. However, Rev. Rul. 56-660, 1956-2 C.B. 693 explains that if a work was finished without a person’s premises, it does not mean that the person who finished the work is an independent contractor. The key of this factor is rely on “the nature of the service involved and the extent to which an employer generally would require that employees perform such services on the employer’s premises.” The key of control over the service is to see if the person has the right to force the workers to do exactly what he or she asked within a certain time.

  1. Arguments Applying Law and Facts (30%) (> 5 pages) –

 
 
 
 
References
Employee v. Independent Contractor. (n.d.). Retrieved November 28, 2016, from
http://www.ecfa.org/content/topicemployeev.independentcontractor

  1. (2016, November 26). 29 CFR 785.47 – Where records show insubstantial or insignificant

periods of time. Retrieved December 01, 2016, from
https://www.govregs.com/regulations/expand/title29_chapterV_part785_subpartD_section785.47
29 U.S.C. 255 – Statute of limitations. (n.d.). Retrieved December 01, 2016, from
https://www.gpo.gov/fdsys/granule/USCODE-2011-title29/USCODE-2011-title29-chap
-sec255
Jaburg Wilk. (n.d.). Retrieved December 01, 2016, from
http://www.jaburgwilk.com/news-publications/the-fair-labor-standards-act-minimum-w
ge-overtime-and-travel-time
Welcome to LII. (n.d.). Retrieved December 01, 2016, from https://www.law.cornell.edu/
COULDNT CITE THIS ONE https://www.dol.gov/whd/regs/compliance/wh1312.pdf
WILL TRY IT TMR 🙂