Indicia a court should consider when determining whether a worker is an employee or independent contractor are 1) the right to control the conduct of the work, 2) the right of termination, 3) the method of payment, 4) the freedom to select and hire workers, 5) the furnishing of tools and equipment, 6) self-scheduling of work hours, and 7) being free to render services to other entities. Bargery v. Obion Grain Co., 785 S.W.2d 118, 119-20 (Tenn. 1990); Wright v. Knox Vinyl Aluminum Co., Inc., 779 S.W. 2d 371, 373 (Tenn. 1989); Maisers v. Arrow Transfer Storage Co., 639 S.W. 2d 654, 656 (Tenn. 1982). "[A]lthough no indicia is infallible or entirely indicative, it has generally been recognized by this court that the primary test for determining a claimant's status as employee or independent contractor is the right to control."
Tennessee courts apply a seven-factor test to determine employee-independent contractor status: " (1) the right to control the conduct of the work, (2) the right of termination, (3) the method of payment, (4) the freedom to select and hire helpers, (5) the furnishing of tools and equipment, (6) self scheduling of working hours, and (7) being free to render services to other entities." Bargery v. Obion Grain Co., 785 S.W.2d 118, 119-120 (Tenn.1990). FedEx Ground believes that these factors will take the court beyond the Operating Agreement's terms and hence render class certification unsuitable.
Tennessee courts apply a seven-factor test to determine employee-independent contractor status: " (1) the right to control the conduct of the work, (2) the right of termination, (3) the method of payment, (4) the freedom to select and hire helpers, (5) the furnishing of tools and equipment, (6) self scheduling of working hours, and (7) being free to render services to other entities." Bargery v. Obion Grain Co., 785 S.W.2d 118, 119-120 (Tenn.1990). FedEx Ground believes that these factors will take the court beyond the Operating Agreement's terms and hence render class certification unsuitable.
Tennessee courts look to seven factors to resolve employment status: (1) the right to control the conduct of the work; (2) the right of termination; (3) the method of payment; (4) the freedom to select and hire helpers; (5) the furnishing of tools and equipment; (6) self-scheduling of work hours; and (7) freedom to render services to other entities. E.g., Bargery v. Obion Gran Co., 785 S.W.2d 118, 119-120 (Tenn. 1990). The right to control is the most significant factor, with the relevant inquiry being whether the right exists, not whether it is exercised.
While no single factor is dispositive per se, the courts have consistently emphasized that the right to control the conduct of the work is the most significant factor. Mathis, 985 F.2d at 279; Bargery v. Obion Grain Co., 785 S.W.2d 118, 120 (Tenn. 1990); Wright, 779 S.W.2d at 373; Stratton, 695 S.W.2d at 950; Masiers, 639 S.W.2d at 656; Wooten Transports, Inc. v. Hunter, 535 S.W.2d 858 (Tenn. 1976). The control test is satisfied if TVA had the right to control, regardless of whether the right to control was actually exercised by TVA. Mathis, 985 F.2d at 279; Murray, 46 S.W.3d at 176; Stratton, 695 S.W.2d at 950; Carver v. Sparta Electric System, 690 S.W.2d 218, 220 (Tenn.
When determining whether a plaintiff is an employee or an independent contractor, a court may consider many factors: "(A) The right to control the conduct of the work; (B) The right of termination; (C) The method of payment; (D) The freedom to select and hire helpers; (E) The furnishings of tools and equipment; (F) Self scheduling of working hours; and (G) The freedom to offer services to other entities." Tenn. Code Ann. ยง 50-6-102(11) (2005); see also Galloway, 822 S.W.2d at 586 (quoting Bargery v. Obion Grain Co., 785 S.W.2d 118, 119-20 (Tenn. 1990)). These factors do not preclude an examination of the work relationship as a whole but are merely a means of analysis.
Among the factors to be considered by a trier of fact in determining whether a work relationship is that of employer-employee or independent contractor are "(1) the right to control the conduct of the work, (2) the right of termination, (3) the method of payment, (4) the freedom to select and hire helpers, (5) the furnishing of tools and equipment, (6) self-scheduling of work hours, and (7) being free to render services to other entities." See Bargery v. Obion Grain Co., 785 S.W.2d 118, 119-20 (Tenn. 1990) (citing Masiers v. Arrow Transfer Storage Co., 639 S.W.2d 654, 656 (Tenn. 1982)).
These factors include (1) the right to control the conduct of the work, (2) the right of termination, (3) the method of payment, (4) the freedom to select and hire helpers, (5) the furnishing of tools and equipment, (6) self-scheduling of working hours, and (7) being free to render services to other entities. Bargery v. Obion Grain Co., 785 S.W.2d 118, 119-20 (Tenn. 1990). Applying the foregoing principles to the facts contained in this record, we are persuaded that Mr. Catlett was a loaned servant.
To establish that an employee-employment relationship existed, the claimant must be an employee and not an independent contractor or a casual employee. Bargery v. Obion Grain Co., 785 S.W.2d 118, 121 (Tenn. 1990). The determination of whether an individual is characterized as an employee or an independent contractor is a question of law, Cromwell Gen'l Contractor, Inc. v. Lytle, 439 S.W.2d 598, 600 (Tenn. 1969), which we review de novo with no presumption of correctness.
Tenn. Code Ann. ยง 50-6-102(11) (2005) sets forth seven primary factors to guide determinations as to whether an individual in a given work relationship is an "employee," or a "subcontractor" or "independent contractor": i) the right to control the conduct of the work; ii) the right of termination; iii) the method of payment; iv) the freedom to select and hire helpers; v) the furnishings of tools and equipment; vi) self scheduling of working hours; and vii) the freedom to offer services to other entities. See Bargery v. Obion Grain Co., 785 S.W.2d 118, 119-20 (Tenn. 1990) (citing Masiers v. Arrow Transfer Storage Co., 639 S.W.2d 654, 656 (Tenn. 1982)).