UNIT 8 -BUSINESS LAW
Truly Blessed
HowwouldyourespondtoLysandrae2.docxHow would you respond to Lysandrae? ALREADY DONE
According to the article Professor Nolan was kind enough to let us in on, the California Supreme Court now follows the "ABC test" (Amar, Reis, Rey, Diton, 2018)
Since it is not mentioned as to where the CARDWARE offices are, or where this scenario took place, I will be using the California law, since, in my opinion, most clothing businesses are either in California or New York. According to the ABC test, a worker has been suffered or permitted to work, and thus is an employee for wage order purposes, unless the hiring business demonstrates each of the three requirements. ( Amar, Reis, Rey, Diton, 2018 ) The three requirements are ;
1.the worker must be free from control and direction of the hirer in connection with the performance of the work.
2. the worker performs work that is outside the usual course of the hiring entity's business
3. the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed. ( Amar, Reis, Rey, Diton, 2018)
According to these requirements, I would not believe Nicole to be an independent contractor. It sounds as if she works for the hirer, therefore under their control. It also sounds as if this is a regular type of business for CARDWARE in the fashion industry. I do believe Nicole qualifies as customarily engaged in this occupation. Unfortunately, it was stated that the person must meet EACH requirement, not just one.
References
Arnold & Porter. (n.d.). Employee or Independent Contractor? California Supreme Court Adopts New Test for Worker Classification | Publications and Presentations. Retrieved from https://www.arnoldporter.com/en/perspectives/publications/2018/05/employee-or-independent-contractor-california
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Greetings All!
In short Nicole was an independent contractor. According to Miller, R. Section 2 of the Restatement (Third) of Agency states, “[An independent contractor is] a person who contracts with another to do something for him [or her] but who is not controlled by the other nor subject to the other's right to control with respect to his [or her] physical conduct in the performance of the undertaking” (pg. 397). Thus, Nicole was not considered an employee as Cardware did control Nicoles physical conduct in the performance of the undertaking tasks.
According to Miller, R. distinction is made between a detour and a frolic. A detour is taking time from the assigned task; however, a frolic is conducting your own business on your own time. In this scenario Nicole was conducting business of her own on her own time.
Regards,
Tonia
How to respond to Hung?
Good evening,
An independent contractor is a person who contracts with another to do something for him or her but who is not controlled by the other nor subject to the other's right to control with respect to his or her physical conduct in the performance of the undertaking (Miller, R.L., 2013). In the scenario, Nicole has been given an office, and other office supplies to do her job. These were all provided by CARDWARE. The only item that was not given to Nicole was a laptop. A court would make a final determination based on several factors, but given the amount of details provided by the scenario, Nicole would not be considered an independent contractor, but rather an employee of CARDWARE.
Nicole had a bad day and physically assaulted Raquel for no good reason. Because of her status within CARDWARE, she can be held liable for damages along with the company. If it is determined that she is an independent contractor, Nicole would be held liable for the assault and CARDWARE would not be held liable for torts that an independent contractor commits against third parties (Miller, R.L., 2013).
References:
Miller, R. L. (2013). Cengage Advantage Books: Fundamentals of Business Law: Summarized Cases, 9th Edition. [Purdue University Global Bookshelf]. Retrieved from:
https://purdueuniversityglobal.vitalsource.com/#/books/9781305482920/cfi/6/60!/4/12/12/2/2@0:0
Miller, R. L. (2013). Cengage Advantage Books: Fundamentals of Business Law: Summarized Cases, 9th Edition. [Purdue University Global Bookshelf]. Retrieved from:
https://purdueuniversityglobal.vitalsource.com/#/books/9781305482920/cfi/6/60!/4/12/14/12/4/2@0:99.4
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