450 CLACKAMAS GASTROENTEROLOGY ASSOCIATES,
P. C. v. WELLS
Opinion of the Court
"Whether and, if so, to what extent the organization supervises the individual's work "Whether the individual reports to someone higher in the organization "Whether and, if so, to what extent the individual is able to influence the organization "Whether the parties intended that the individual be an employee, as expressed in written agreements or contracts "Whether the individual shares in the profits, losses, and liabilities of the organization." EEOC Compliance Manual § 605:0009.10
As the EEOC's standard reflects, an employer is the person, or group of persons, who owns and manages the enterprise. The employer can hire and fire employees, can assign tasks to employees and supervise their performance, and can decide how the profits and losses of the business are to be distributed. The mere fact that a person has a particular title—such as partner, director, or vice president—should not necessarily be used to determine whether he or she is an employee or a proprietor. See ibid. ("An individual's title . . . does not determine whether the individual is a partner, officer, member of a board of directors, or major shareholder, as opposed to an employee"). Nor should the mere existence of a document styled "employment agreement" lead inexorably to the conclusion that either party is an employee. See ibid. (looking to whether "the parties intended that the individual be an employee, as expressed in written
10 The EEOC asserts that these six factors need not necessarily be treated as "exhaustive." Brief for United States et al. as Amici Curiae 9. We agree. The answer to whether a shareholder-director is an employee or an employer cannot be decided in every case by a " 'shorthand formula or magic phrase.' " Nationwide Mut. Ins. Co. v. Darden, 503 U. S. 318, 324 (1992) (quoting NLRB v. United Ins. Co. of America, 390 U. S. 254, 258 (1968)).
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