The common law agency test is created in order to define which party (either the employee or the employer) administrates the relationship at the working place. It is known that common law agency test is usually applied in the context of the ERISA and amendments to it in COBRA of 1985, various tax statutes, and the NLRA. Moreover, since recently, this test is also used regarding the Occupational Safety and Health Act, Title VII, the Americans with Disabilities Act, and finally, Age Discrimination in Employment Act. Furthermore, the tests can be applied when some issues are considered in different common law causes when it is important to define a status of an employee.There are really many aspects which are to be involved and considered in common law agency test connected with employer-employee relationship, but what is the most important factor here is the right to control. Thus, it understandable that when different issues connected with the status of employee and the employer’s rights to control and direct employee’s actions and behaviors, the common law agency test is used by the court.
The examples of this test can be as follows. The well-known case connected with defining the role of an employee is Nationwide Mutual Insurance Co. v. Darden. In this case the court had to use the common law agency test in order to decide the meaning of the notion “employee” under the ERISA. The second example can be the case of Community for Creative Non-Violence v. Reid. Here the test was used to decide whether Reid was an employee or an independent contractor.
Horne, M., S., Williamson, T., S., Herman, A. Contingent Workforce: Business and Legal Strategies. New York: Law Journal Press.Distinguish between the business necessity defense and the bona fide occupational qualification defense. Provide an example of each. Very often employee selection can become the domain where much discrimination happens. In order to accommodate the problems and to define the rules for the employers to stick to and follow, there was an amendment passed to the Civil Rights Act of 1964. According to it two theories of discrimination were defined and included: the theory of disparate treatment and the theory of disparate impact. Each of the theories has its own type of defense: bona fide occupational qualification defense and business necessity defense.
Bona fide occupational qualification defense lies in the defendant’s responsibility to prove that the definable class or group of employees would be unable to perform their duties safely and to an accomplished standard; or that it is unpractical or just impossible to give consideration to the qualifications of these employees; or that the bona fide occupational qualification is required to perform the duties. The example of this is the justification of the manufacturer of men’s outfits to hire male models to advertise the clothes.
When business necessity defense is considered, in this case the employer (who is a defendant) has to prove that the use of the particular employment practice (even causing disparate impact on the basis of color, gender, race, etc.) is justified as a job related and for the position under discussion and is in keeping with this particular business necessity. The example of this type of defense can be Griggs v. Duke Power case when Duke Power could not justify its policy of segregating employees according to race for this is not a business necessity.
