Focusing the Multifactor Test for Employee Status: The Restatement’s Entrepreneurial Formulation

The American Law Institute’s twenty-first century mission to restate for the first time American employment law carried the responsibility to provide more clear guidance on the law’s critical distinction between employees and independent contractors. This distinction delineates the scope not only of federal employee protection and benefit statutes, but also of employee protections and benefits conferred by state statutory and common law. A Restatement of Employment Law, however, like any Restatement, could not formulate clearer or otherwise more desirable doctrine from the whole cloth of the views and values of the Reporters or the ALI membership. The Restatement could not offer a new rule of decision. It could only offer a better explanation of what has been the underlying basis of a majority of the better decisions limning the employee-employer distinction. Doing so required close examination of the various unstructured multifactor tests that had been used over the past several decades. The Restatement had to determine how and why the better decisions applied the right-to-control factor and the other factors listed among the various multifactor tests. The Restatement needed to provide guiding principles to render the multifactor tests more focused and predictable. We did so by describing as independent businesspersons those with retained discretion to enhance their independent returns. Truly independent businesspersons retain discretion to enhance their returns or profits by making important business decisions in their own interest. These important decisions, the cases revealed, include the allocation of the labor of others, the allocation of capital, and the allocation of the service providers’ own labor. Or, as we expressed it in the black letter of § 1.01(2), “whether to hire and where to assign assistants, whether to purchase and where to deploy equipment, and whether and when to provide service to other customers.

The Causation Standard in Federal Employment Law: Gross v. FBL Financial Services, Inc., and the Unfulfilled Promise of the Civil Rights Act of 1991

This article analyzes and recommends a Congressional response to the Supreme Court’s 2009 decision in Gross v. FBL Financial Services, Inc.. The article places the Gross decision’s choice of a causation standard for disparate treatment causes of action in historical context by comparing that choice with that made by Congress for Title VII in § 107 of the Civil Rights Act of 1991, and criticizes the Court’s activist refusal to follow its own Title VII precedent. Stressing the lower courts’ misinterpretation of § 107, both before and after the Court’s own interpretation of this section in 2003 in Desert Palace, Inc. v. Costa, the article does not recommend that Congress merely use the 1991 Act as a model for amending the ADEA. The article instead explains how Congress could more effectively formulate a contributing or motivating cause standard not only for anti-discrimination law mandates like those in the ADEA and Title VII, but also for other federal employment law prohibitions. The article also explains why the contributing cause standard is consistent with the consideration of the pretext proof contemplated within the McDonnell Douglas-Burdine framework for disparate treatment causes of action under federal anti-discrimination law

Fashioning a General Common Law for Employment in an Age of Statutes

In the current post-Erie age of statutes the Supreme Court continues to have potential influence over the development of a “general” common law used to decide recurring issues governed by state law. This influence, which has drawn little commentary, derives from the Court’s authority to consider analogous issues when filling gaps in federal statutes, sometimes through express reliance on general common law. The influence is through the power to persuade, like that of the federal judiciary in its general common lawmaking age of Swift, rather than through the power to command, like that of the federal judiciary in the formulation of the specialized federal common law of the post-Erie era. The Court’s post-Erie role in general common law making has been evident recently in a series of decisions interpreting federal employment statutes. In those decisions the Court has relied in part on common law as formulated in the Restatement Second of Agency, but also has modified that formulation in ways that could enhance the common law applied by state courts. The American Law Institute in turn has considered and in part relied upon the Court’s participation in the common law making process in the production of its Restatement of Employment Law, which will be granted final approval in May, 2014. By using examples from the Court’s recent employment law decisions, this article highlights how the Court can influence common law through its delegated authority to make law through statutory interpretation

Judicial Control of the National Labor Relations Board\u27s Lawmaking in the Age of Chevron and Brand X

This article analyzes and applies to Labor Board decision making the Court’s oft-cited 1984 decision in Chevron U.S.A. v. Natural Resources Defense Council. The article argues that judicial review of Board decision making under Chevron, though limited, can still be sufficiently meaningful to control excessive shifts in Board lawmaking criticized by many commentators. The article explains why recent Supreme Court decisions reject any distinction between two theoretically distinct forms of agency discretionary lawmaking – (1) lawmaking through construction of the direct force of an ambiguous statute: and (2) lawmaking through the elaboration of law beyond that which is embodied in the statute. Both forms of lawmaking are subject to an arbitrary or capricious standard of review. This standard of review allows the courts to require the Board to do more than simply defend its doctrinal reversals or reformulations with plausible interpretations of ambiguous statutory language. Regardless of whether the Board proceeds by adjudication or by rulemaking, the courts can require it to consider all important aspects of the policy decision that its construction addresses, including the impact the decision may have on the world the agency regulates in light of relevant contemporary circumstances. The courts can require the agency to address the evidence before it and can sometime demand that it take reasonable steps to garner additional evidence. Such review does not prevent an agency like the Board from reversing any significant policy decisions; but it can slow the oscillation of policy to ensure that adopted changes have greater legitimacy, and it can stabilize agency-formulated law in cases where empirical evidence resists the agency’s assumptions. The article applies and develops this analysis through application to five significant decisions of the Bush-appointed Labor Board. These decisions concern: the exclusion of graduate student instructors from protection as employees; the treatment of jointly-employed employees in Board approval of bargaining units; the chilling of concerted activity through neutral employer rules; the application of Weingarten rights in the non-union sector; and the definition of the supervisory exclusion from protected employee status

Visual detection of blemishes in potatoes using minimalist boosted classifiers

This paper introduces novel methods for detecting blemishes in potatoes using machine vision. After segmentation of the potato from the background, a pixel-wise classifier is trained to detect blemishes using features extracted from the image. A very large set of candidate features, based on statistical information relating to the colour and texture of the region surrounding a given pixel, is first extracted. Then an adaptive boosting algorithm (AdaBoost) is used to automatically select the best features for discriminating between blemishes and non-blemishes. With this approach, different features can be selected for different potato varieties, while also handling the natural variation in fresh produce due to different seasons, lighting conditions, etc. The results show that the method is able to build ``minimalist'' classifiers that optimise detection performance at low computational cost. In experiments, blemish detectors were trained for both white and red potato varieties, achieving 89.6\% and 89.5\% accuracy, respectively