When Employee = Employer

Frank Menetrez, Employee Status and the Concept of Control in Federal Employment Discrimination Law, 63 SMU L. Rev. 137 (2010). Charles A. Sullivan I admit to being old-fashioned enough to like well-done doctrinal articles. Especially ones that upset conventional wisdom – the courts, the agencies, and the law reviews – by suggesting that, not to put too fine a point on it, everybody's wrong. Doctrinally. Such is Frank Menetrez's piece Employee Status and the Concept of Control in Federal Employment Discrimination Law, 63 SMU L. Rev. 137 (2010). Frank doesn't appear to be in the academy at the moment, but we could use more scholars like him. Admittedly, I came to the piece with pretty low expectations – agency, control, what new could be said? It turns out, plenty. Frank's target is the notion that someone can't be an employer and an employee at the same time, which explains why cases like Clackamas Gastroenterology Associates, P.C. v. Wells turn on whether the doctor-owners were "really" owners (in which case they were employers and, for the Court, couldn't also be employees). Continue reading "When Employee = Employer"

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