- 25 -
master. 30 C.J.S. §§ 9,12. Early cases established the "control test" based on the master's
"right or power to tell one rendering services 'how' the services were to be performed," as
opposed to merely what was to be accomplished. Commissioner of Internal Revenue v. Modjeski
75 F.2d 468, 471 (2nd Cir), cert. denied 295 U.S. 764 (1935)
In Doane Agricultural Service, Inc. v. Coleman 254 F. 2d 40 (6th Cir.), cert. denied
358 U.S. 818 (1958), the Sixth Circuit held that the right of control whether exercised it or
not, is the distinguishing feature in the master/servant, employer/employee relationship.
The court argued that current cases hold that
[a]n employee status is determined by whether the Wieged employer has the right of
control over the method as distinguished from the results and look to such things
as the right to hire and fire, to direct the manner and method of the work, as to who
paid the wages, and whether the pay was based upon time or by the job, whether the
work was ordinary labor, or skilled labor, and who provided the tools for the work.
Id.. 254 F.2d 43 (citations omitted). The court emphasized the control test and placed little
reliance on the issue of wages, concluding that the payment of wages is a secondary test in
determining the existence of the employer-employee relationship. Id., 254 F.2d at 44.
In Avis Rent-A-Car Systems, Inc. v. U.S., 503 F.2d 423 (2d Cir. N.Y.) 1974. In
Avis, the Second Circuit ruled that "car shuttlers" were employees for the purposes of taxation.
In reaching that decision, the Court argued that an individual is an employee if the person
receiving the benefit of a service has the right to control the manner in which the service is
performed; the relationship between a person rendering a service and the person receiving it is
permanent; and if the person rendering a service works in the course of the recipient's
business, rather than in some ancillary capacity. Id., 503 F.2d 429.
In the instant case, WBAI exercises extensive control over unpaid and paid staff alike.
Previous Page ---------- Next Page
Up to the briefs page.