           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                          2    Weary v. Cochran, et al.                     No. 03-5143
        ELECTRONIC CITATION: 2004 FED App. 0251P (6th Cir.)
                    File Name: 04a0251p.06                                  Harless, LEWIS, KING, KRIEG & WALDROP, Nashville,
                                                                            Tennessee, Robert E. Boston, WALLER, LANSDEN,
                                                                            DORTCH & DAVIS, Nashville, Tennessee, for Appellees.
UNITED STATES COURT OF APPEALS                                              ON BRIEF:        Angus Gillis III, Ashley N. Arnold,
                                                                            SCHULMAN, LEROY & BENNETT, Nashville, Tennessee,
                   FOR THE SIXTH CIRCUIT                                    for Appellant. Winston N. Harless, John Roy Tarpley,
                     _________________                                      LEWIS, KING, KRIEG & WALDROP, Nashville,
                                                                            Tennessee, Robert E. Boston, Stanley E. Graham, WALLER,
 JOHN WEARY ,                    X                                          LANSDEN, DORTCH & DAVIS, Nashville, Tennessee, for
         Plaintiff-Appellant,     -                                         Appellees.
                                  -
                                  -   No. 03-5143                             MARTIN, J., delivered the opinion of the court, in which
            v.                    -                                         MILLS, D. J., joined. CLAY, J. (pp. 12-29), delivered a
                                   >                                        separate dissenting opinion.
                                  ,
 WILLIAM S. COCHRAN, et al.,      -
         Defendants-Appellees. -                                                                _________________
                                 N                                                                  OPINION
      Appeal from the United States District Court                                              _________________
    for the Middle District of Tennessee at Nashville.
 No. 00-01121—Thomas A. Wiseman, Jr., District Judge.                         BOYCE F. MARTIN, JR., Circuit Judge. John Weary
                                                                            appeals the district court’s dismissal of his complaint alleging
                     Argued: March 9, 2004                                  claims under the Age Discrimination in Employment Act, 29
                                                                            U.S.C. § 621 et seq., and under Tennessee state law against
               Decided and Filed: July 29, 2004                             Northwestern Mutual Life Insurance Company and William
                                                                            S. Cochran. For the reasons that follow, we AFFIRM.
   Before: MARTIN and CLAY, Circuit Judges; MILLS,
                  District Judge.*                                                                         I.

                       _________________                                      Northwestern Mutual Life Insurance Company markets its
                                                                            products through “General Agents,” who in turn contract with
                             COUNSEL                                        “Special Agents.” Northwestern Mutual hired William S.
                                                                            Cochran as its General Agent and granted him the exclusive
ARGUED: Angus Gillis III, SCHULMAN, LEROY &                                 contractual right to market Northwestern Mutual products in
BENNETT, Nashville, Tennessee, for Appellant. Winston N.                    Tennessee. Cochran’s insurance agency was located in
                                                                            Nashville and, as of January 2000, had nearly one hundred
                                                                            Special Agents under contract. Weary served as one of those
                                                                            Special Agents from 1973 until 2000.
    *
     The Hon orable R ichard M ills, United States District Judge for the
Central District of Illinois, sitting by designation.

                                   1
No. 03-5143                    Weary v. Cochran, et al.      3    4    Weary v. Cochran, et al.                    No. 03-5143

   The contract governing Weary’s business relationship with      used by the district court. Shah v. Deaconess Hosp., 355 F.3d
Cochran, called the “Full-Time Special or Soliciting Agent’s      496, 498 (6th Cir. 2004). Summary judgment is appropriate
Contract,” provided that the “Agent [Weary] shall be an           “if the pleadings, depositions, answers to interrogatories, and
independent contractor and nothing herein shall be construed      admissions on file, together with the affidavits, if any, show
to make Agent an employee of the Company [Northwestern            that there is no genuine issue as to any material fact and that
Mutual], General Agent [Cochran], or First Party [Cochran].”      the moving party is entitled to a judgment as a matter of law.”
Weary was paid solely upon a commission basis, and agreed         FED . R. CIV . P. 56(c). In viewing the evidence, we must draw
to meet certain minimum selling standards set by                  all reasonable inferences in favor of Weary, as the nonmoving
Northwestern Mutual and Cochran. Cochran set higher               party. Shah, 355 F.3d at 49.
standards than Northwestern Mutual, as he was permitted to
do, and when Weary failed to meet his minimum earnings              Like other federal employment discrimination statutes, the
standards in 1998 and 1999, Cochran fired him. At the time        Age Discrimination in Employment Act protects employees,
of his termination, Weary was over forty years of age. Weary      but not independent contractors. Shah, 355 F.3d at 499;
filed a claim with the Equal Employment Opportunity               Simpson v. Ernst & Young, 100 F.3d 436, 438 (6th Cir. 1996).
Commission, asserting that he was impermissibly terminated        The determination of whether a plaintiff qualifies as an
because of his age. The Commission found, however, that no        employee under the Act “is a mixed question of law and fact”
employer-employee relationship had existed. Thus, the             that a judge normally can make as a matter of law. Lilley v.
Commission closed its file and issued a right to sue letter.      BTM Corp., 958 F.2d 746, 750 n.1 (6th Cir. 1992). As a
                                                                  general matter, this Court has repeatedly held that insurance
  Weary then filed the instant complaint against                  agents are independent contractors, rather than employees, in
Northwestern Mutual and Cochran, asserting claims under the       a variety of contexts. See, e.g., Ware v. United States, 67
Age Discrimination in Employment Act, as well as state law        F.3d 574 (6th Cir. 1995) (insurance agent was an independent
claims for breach of contract, breach of the duty of good faith   contractor for tax purposes); Wolcott v. Nationwide Mut. Ins.
and fair dealing, fraud in the inducement to contract and         Co., 884 F.2d 245 (6th Cir. 1989) (insurance agent was an
negligent or intentional misrepresentation. The district court    independent contractor under ERISA); Plazzo v. Nationwide
awarded summary judgment in favor of Northwestern Mutual          Mut. Ins. Co., No. 88-4016, 1989 WL 154816 (6th Cir. Dec.
and Cochran on the federal age discrimination claims, holding     22, 1989) (unpublished opinion) (same). Other courts are in
that neither qualified as Weary’s “employer” within the           accord with this view. See, e.g., Butts v. Comm’r of Internal
meaning of the Act. Having dismissed the federal claims, the      Revenue, 49 F.3d 713 (11th Cir. 1995) (insurance agents were
district court also dismissed the state law claims for lack of    independent contractors for tax purposes); Oestman v. Nat’l
jurisdiction.                                                     Farmers Union Ins., 958 F.2d 303 (10th Cir. 1992) (insurance
                                                                  agent was an independent contractor under the Age
                              II.                                 Discrimination in Employment Act).
  The sole issue in this appeal is whether Weary was an             We have recently clarified that the proper test to apply in
“employee” of Northwestern Mutual or Cochran within the           determining whether a hired party is an employee or an
meaning of the Act. In analyzing the district court’s             independent contractor under the Act is the “common law
resolution of this issue, we employ de novo review, using the     agency test” set forth in Nationwide Mutual Insurance
same standard under Federal Rule of Civil Procedure 56(c)         Company v. Darden, 503 U.S. 318, 322 (1992). See Shah,
No. 03-5143                          Weary v. Cochran, et al.             5    6      Weary v. Cochran, et al.                    No. 03-5143

355 F.3d at 499. In Darden, the Supreme Court described the                    which is set forth below – reflects upon, and is relevant to,
common law agency test as follows:                                             this core issue of control. Before turning to those specific
                                                                               factors, however, we consider in a more general manner the
  In determining whether a hired party is an employee                          extent to which Northwest Mutual or Cochran had the right to
  under the general common law of agency, we consider                          control the manner and means by which Weary marketed and
  the hiring party’s right to control the manner and means                     sold life insurance policies.
  by which the product is accomplished. Among the other
  factors relevant to this inquiry are the skill required; the                   We begin by noting two pieces of evidence that shed light
  source of the instrumentalities and tools; the location of                   on how the parties themselves viewed the nature of their
  the work; the duration of the relationship between the                       working relationship. First, the Special Agent Contract
  parties; whether the hiring party has the right to assign                    characterized Weary as an “independent contractor” and
  additional projects to the hired party; the extent of the                    explicitly cautioned that “nothing herein shall be construed to
  hired party’s discretion over when and how long to work;                     make [him] an employee” of Northwestern Mutual or
  the method of payment; the hired party’s role in hiring                      Cochran. This evidence, while not dispositive of the issue, is
  and paying assistants; whether the work is part of the                       certainly relevant to the inquiry. See, e.g., Eyerman v. Mary
  regular business of the hiring party; whether the hiring                     Kay Cosmetics, Inc., 967 F.2d 213, 218 (6th Cir. 1992)
  party is in business; the provision of employee benefits;                    (emphasizing that a cosmetic salesperson’s employment
  and the tax treatment of the hired party.                                    agreement “unambiguously declared [her] to be an
                                                                               independent contractor”); Wolcott v. Nationwide Mut. Ins.
Darden, 503 U.S. at 323-34; see also Shah, 355 F.3d at 499-                    Co., 884 F.2d 245, (6th Cir. 1989) (noting the significance of
500; Simpson, 100 F.3d at 443. “Since the common-law test                      the employment agreement’s characterization of the plaintiff
contains no shorthand formula or magic phrase that can be                      insurance agent as “an independent contractor and not an
applied to find the answer, . . . all of the incidents of the                  employee”); Daughtrey v. Honeywell, Inc., 3 F.3d 1488, 1492
relationship must be assessed and weighed with no one factor                   (11th Cir. 1993) (the fact that the consultant agreement stated
being decisive.” Darden, 503 U.S. at 324. Of the applicable                    that the plaintiff was hired as an independent contractor was
Darden factors,1 the vast majority weigh in favor of                           “probative of the parties’ intent” regarding the nature of the
characterizing Weary as an independent contractor, rather                      employment relationship).
than an employee.
                                                                                 Second, Weary admitted in his deposition that he intended
  The crux of Darden’s common law agency test is “the                          to be an independent contractor:
hiring party’s right to control the manner and means by which
the product is accomplished.” 503 U.S. at 323. This is a                           Q. So by contract, you agreed that you were an
broad consideration that is embodied in many of the specific                          independent contractor and not an employee of Mr.
factors articulated in Darden. Our analysis of those factors –                        Cochran or Northwestern Mutual, correct?
                                                                                   A. According to this document and what I was led to
                                                                                      believe, the answer is yes, but the law says if one
    1
      The parties agree that the factor relating to whether the hiring party          party has control over the other party, then it doesn’t
is in business is irrelevant and unhelpful to this analysis, as almost any            make any different what the parties to the contract
hiring party is in business.
No. 03-5143                    Weary v. Cochran, et al.      7    8    Weary v. Cochran, et al.                    No. 03-5143

       call themselves, you have an employer/employee             Mutual manual. That limited authority that Northwest Mutual
       relationship.                                              retained over these aspects of Weary’s work, however, is “not
                                                                  the type of control that establishes an employer/employee
  Q. What I get confused about that, Mr. Weary, is going          relationship.” Oestman, 958 F.2d at 306 (finding plaintiff to
     back to your initial comments . . . in essence, you          be an independent contractor despite being required to obtain
     intended that to be true, correct?                           permission from the defendant before advertising any of
                                                                  defendant’s products). See also Ware, 67 F.3d at 576
  A. That’s correct. But I –                                      (holding that an insurance salesman was an independent
                                                                  contractor despite being required to comply with various
  Q. You have intended to be an independent contractor,           guidelines set by the insurance company); Kirby v. Robby Len
     didn’t you?                                                  Swimfashions, 904 F.2d 36, at **3 (6th Cir. 1990) (Table)
                                                                  (“While [defendant] required orders and paper work to be
  A. I did. But the law changed the contract.                     administered on [its] forms and in conjunction with [its]
(Emphasis added).                                                 practices, the infringement of [plaintiff’s] discretion in the
                                                                  affairs of his business by these requirements was minimal”).
   In addition to this evidence concerning the parties’ intent,   Northwestern Mutual’s authority over those aspects of
the record is replete with other evidence – much of which         Weary’s operations is understandable, see Oestman, 958 F.3d
Weary himself has admitted – indicating that Weary was an         at 306 (reasoning that defendants “have a substantial interest
independent contractor who, for the most part, had the right      in controlling the advertising of their products because [they]
to control – and did, in fact control – the manner and means      may be liable for [the plaintiff’s] misstatements or
by which he accomplished his own work. For example, and           misrepresentations”), and does not undermine our conclusion
as discussed in greater detail below in connection with the       that, in general, Weary controlled the manner and means by
more specific Darden factors, Weary was paid solely on a          which he performed his job.
commission basis; he was free to take other jobs – and, in
fact, sold insurance policies for approximately fourteen other       The more specific factors articulated in Darden also favor
insurance companies; he set his own hours and could take          characterizing Weary as an independent contractor. The first
vacation at his leisure; he employed his own staff and paid       factor relates to the skill required to perform the job in
them out of his own pocket; he decided whom to solicit for        question. In Schwieger v. Farm Bureau Insurance Co., 207
business; he paid for his own office space, equipment,            F.3d 480, 485 (8th Cir. 2000), the court found that this factor
supplies, car and travel expenses; and he kept his own            “weigh[ed] heavily in favor of independent contractor status”
financial records and monitored his own profit and loss. This     where the insurance agent “considered herself an insurance
is just a sampling of the abundant evidence in the record         professional: she was licensed by the state of Nebraska at her
pointing toward independent contractor status.                    own expense, was subject to a code of professional ethics, and
                                                                  had been certified by professional associations.” In this case,
  We recognize, as the dissent points out, that Weary’s           Weary admitted that the sale of insurance is a “highly
independence was not entirely unrestrained. He was required,      specialized field,” requiring considerable “training,”
for instance, to comply with applicable legal and ethical rules   “education” and “skill.” He also admitted that a state license
and certain administrative guidelines set out in a Northwest      was required in order to sell insurance and that he had taken
                                                                  licensure examinations in “several” states. Weary held a
No. 03-5143                   Weary v. Cochran, et al.      9    10   Weary v. Cochran, et al.                     No. 03-5143

specialized “Series VI” license for the sale of securities, a    expense, had sole discretion in hiring, firing and
Chartered Life Underwriter certification and a business          compensation matters, and withheld and remitted taxes to the
administration degree. Thus, this factor weighs in favor of      federal government in his capacity as the employer of his staff
independent contractor status.                                   members. Weary points out that his affidavit states that
                                                                 Cochran required him to hire and maintain a secretary for
   Second, the source of instrumentalities and tools used in     twenty hours per week and if he did not, he would suffer a
Weary’s business was Weary himself, not Northwest Mutual         reduction in his expense allowance. That fact is insignificant,
or Cochran. Weary admits that he paid for and procured his       however, because it says nothing about whether Northwestern
own office equipment, internet and phone service, postage,       Mutual or Cochran played any role in hiring or paying
copies and automobile. He also paid for meals with               Weary’s assistants. The affidavit only alleges that Cochran
prospective clients and for his attendance at professional       required Weary to hire and pay a secretary to work at least
training courses.                                                twenty hours per week.
  Third, with respect to the location of Weary’s work, he           The seventh and eighth factors relate to the provision of
admits that he worked either at his home office or at            benefits and tax treatment. Weary places particular emphasis
commercial office space that he rented at his own expense.       on the fact that Northwestern Mutual provided him certain
He did not work at offices owned or controlled by                pension and health benefits and that it withheld social security
Northwestern Mutual or Cochran. Therefore, this factor           taxes from his commissions. As the district court held,
weighs in favor of independent contractor status. See            however, the Internal Revenue Code permitted Northwestern
Wolcott, 884 F.2d at 251 (relying upon the fact that an          Mutual to provide those benefits and to withhold those taxes
insurance agent owned and maintained his own office              because of Weary’s status as a non-employee. See, e.g., 26
condominium in finding him to be an independent                  U.S.C. § 3121(d) (permitting a “full time life insurance
contractor).                                                     salesman” who is not a common law employee to be deemed
                                                                 an employee “for purposes of this chapter” – i.e., Chapter 21,
   Fourth, Weary admits that neither Northwestern Mutual nor     Federal Insurance Contributions Act); 26 U.S.C. § 7701 (a)(2)
Cochran had any authority or discretion regarding when or        (permitting a “full time life insurance salesman who is
how long he worked, except to require him to attend periodic     considered an employee for the purpose of Chapter 21 to be
compliance meetings and sales meetings and to meet               deemed a statutory “employee” who is entitled to participate
minimum selling standards. Weary was free to take vacation       in group pension and benefit plans). The district court found
at his leisure and did not report his hours to anyone.           that Weary “admitted to being informed of his ‘statutory
                                                                 employee’ status.” The district court found it even “[m]ore
   Fifth, the fact that Weary was paid solely upon a             instructive” that Weary deducted his profits and losses on his
commission basis and did not earn a salary lends further         own tax returns as a sole proprietor and declared on loan
support to the conclusion that he was an independent             documents that he was self-employed. We agree with the
contractor. See, e.g., Ware, 67 F.3d at 578; Wolcott, 884 F.2d   district court that these factors also sway the balance in favor
at 251.                                                          of independent contractor status.
 Sixth, with regard to the hiring and paying of assistants,       While at least two factors weigh in favor of characterizing
Weary admits that he employed his own staff at his own           Weary as an employee – i.e., the duration of the relationship
No. 03-5143                           Weary v. Cochran, et al.           11     12   Weary v. Cochran, et al.                    No. 03-5143

and the fact that Weary’s work was a regular part of the hiring                                       ______________
party’s business2 – those factors do not offset the
overwhelming evidence that compels the opposite conclusion.                                              DISSENT
                                                                                                      ______________
  In sum, we hold that Weary was an independent contractor,
not an employee, and was, accordingly, not entitled to                            CLAY, Circuit Judge, dissenting. In determining whether
protection under the Age Discrimination in Employment Act.                      Plaintiff was an “employee” of NML or Cochran under the
His claim under the Act having been properly dismissed for                      Age Discrimination in Employment Act, the majority makes
this reason, the district court was entitled, as Weary admits,                  two major errors. First, the majority misstates applicable law
to dismiss the remaining state law claims as well.                              by omitting the two most important factors in the definition
                                                                                of “employee”: the employer’s ability to control job
 For these reasons, the district court’s judgment is                            performance and the employer’s ability to control
AFFIRMED.                                                                       employment opportunities. Both factors indicate that Plaintiff
                                                                                was NML’s “employee.” Secondly, the majority overstates
                                                                                the extent to which analysis of other factors yields the
                                                                                conclusion that Plaintiff was not an “employee” of NML. In
                                                                                fact, these other factors are somewhat ambiguous, but on
                                                                                close analysis, they favor the conclusion that Plaintiff was an
                                                                                “employee.” These two errors lead the majority to the wrong
                                                                                disposition.
                                                                                                              I.
                                                                                  The majority omits the two most important factors in the
                                                                                definition of the term “employee.” When Nationwide Mutual
                                                                                Insurance Co. v. Darden, 503 U.S. 318 (1992) enumerated
                                                                                numerous factors (many of which are applied by the
                                                                                majority), the first and most important factor listed was “the
                                                                                hiring party's right to control the manner and means by which
                                                                                the product is accomplished.” Id. at 323 (quoting Cmty. for
                                                                                Creative Non-Violence v. Reid, 490 U.S. 730, 751-52 (1989)).
                                                                                Also, this Court, in Lilley v. BTM Corp., stated a test that
                                                                                “looks to whether the putative employee is economically
                                                                                dependent upon the principal or is instead in business for
                                                                                himself.” 958 F.2d 746, 750 (6th Cir. 1992) (citations
                                                                                omitted). These two tests were issued within a short time of
    2                                                                           one another, creating some confusion as to the standard for
       W hether the hiring party may assign additional responsibilities may     determining “employee” status.
also arguably weigh in W eary’s favor, although it is not entirely clear that
this factor is applicable under the facts o f this case.
No. 03-5143                    Weary v. Cochran, et al.     13   14    Weary v. Cochran, et al.                     No. 03-5143

   A later case ruled on the issue of whether or not Lilley         At the outset, it is worth noting that the functional standard
(filed on March 12, 1992) was overruled by Darden (filed on      stated in Simpson (and reiterated in Satterfield) leaves little,
March 24, 1992) and also clarified the definition of             if any, room for considerations of contractual disclaimers of
“employee.” This Court stated that Lilley was not overruled,     an employment relationship. This runs contrary to the
because Darden had adopted the same standard as that in          majority’s citation to the contract’s boilerplate language
Lilley, for defining the term “employee”:                        attempting to disclaim an employment relationship in the
                                                                 present case. See also Schwieger v. Farm Bureau Ins. Co.,
  Lilley, like Darden, defines the underlying common             207 F.3d 480, 483 (8th Cir. 2000) (“The existence of a
  denominator of the employer/employee rubric as the             contract referring to a party as an independent contractor does
  employer's ability to control job performance and              not end the inquiry, because an employer may not avoid Title
  employment opportunities of the aggrieved individual as        VII by affixing a label to a person that does not capture the
  the most important of many elements to be evaluated in         substance of the employment relationship.”) (citations and
  resolving the issue after assessing and weighing all of the    internal quotation marks omitted).
  incidents of the relationship with no one factor being
  decisive . . . .                                                  Moreover, even if the contractual disclaimer were relevant,
                                                                 its attempt to avoid an employment relationship is belied by
Simpson v. Ernst & Young, 100 F.3d 436, 442 (6th Cir. 1996).     terminology in other important documents. The Agents
The other factors listed in Darden retain importance but none    Manual of Information, distributed to Plaintiff by NML
of the other factors is as significant as each of the two most   states, “As a Northwestern Mutual Life agent . . . . You are
important factors: the employer’s ability to control job         part of a company that has a reputation of being
performance and the employer’s ability to control                knowledgeable, caring . . . .” (J.A. at 754.) Under ordinary
employment opportunities. Simpson’s interpretation of            parlance, an independent contractor would not be considered
Darden has been reiterated by this Court:                        “part of a company.” Rather, only an employee would merit
                                                                 such designation. Thus, to the extent that terminology is
  for the purposes of the ADA and other Civil Rights Acts,       relevant, it does not clearly favor NML’s position.
  an employer/employee relationship is identified by
  considering: the entire relationship, with the most               Similarly, the majority is wrong to attribute anything more
  important factor being the employer's ability to control       than token significance to the fact that NML initially had
  job performance and employment opportunities of the            succeeded in convincing Plaintiff that he was an “independent
  aggrieved individual.                                          contractor.” Again, this is irrelevant to the functional
                                                                 standard that is employed in defining “employee” status. See
Satterfield v. Tennessee, 295 F.3d 611, 617 (6th Cir. 2002)      also Armbruster v. Quinn, 711 F.2d 1332, 1340 (6th
(citations and internal quotation marks omitted). Overall, the   Cir.1983) (“Though the manner in which the parties view the
Darden test, as interpreted by this Court in Simpson and         relationship is some evidence as to whether the
Satterfield, considers numerous factors, the most important of   manufacturer’s representative in any particular case will be
which are an employer’s ability to control job performance       deemed an ‘employee’ for Title VII purposes, it is not
and an employer’s ability to control an employee’s               determinative of that question.”).
employment opportunities.
No. 03-5143                     Weary v. Cochran, et al.      15    16    Weary v. Cochran, et al.                      No. 03-5143

  A multi-factored, functional analysis governs this case. The      e-mail.” (J.A. at 871.) E-mail solicitations and other
analysis begins with the first of the two most important            solicitations were subject to NML review. (J.A. at 871)
factors, the ability to control job performance. Here, it is        (“Any variable product-related e-mail that is sent to multiple
instructive that the contract reserved for NML the right to         individuals, either collectively or individually, and which
adopt regulations limiting a Special Agent’s freedom to             repeats the same central message or theme is considered sales
conduct business. This provision gave NML widespread                material. As such, it must be reviewed and approved before
“ability to control job performance.” Simpson, 100 F.3d at          use as described above.”). Plaintiff was not allowed to
442 (emphasis added).                                               develop his own illustrations for presentations, independently
                                                                    of NML. (J.A. at 760) (agent’s manual, stating, “To ensure
   Beyond retaining the general ability to control job              accuracy, use only illustrations produced through the
performance by adopting regulations, NML’s contract with            Northwestern Mutual LINK proposal system.”). Plaintiff was
Plaintiff also expressly reserved more specific mechanisms of       subject to precise rules on proper sales presentations. (J.A. at
control, and NML undertook measures, including the                  760) (“Do not . . . characterize a lower-than-current-scale
adoption of detailed regulations, that actually controlled          illustration as a ‘worst case’ scenario . . . .”). As can be seen,
Plaintiff’s performance. Plaintiff’s record-keeping and             these rules were highly detailed and specific; they governed
submitting of insurance applications were subject to review,        daily operations.
according to NML guidelines. In the contract, NML
expressly reserved the right to require Plaintiff to surrender         The second key factor, the employer’s ability to control
“all records” relating to transactions to NML or to Cochran.        employment opportunities, evaluates whether the individual
(J.A. at 464) (item 11, Records). In the Field Management           is free to engage in other employment, outside of a given
Business Conduct Guidelines, Plaintiff was advised by NML:          relationship. In the present case, written permission from
“You must be aware of the need to prevent, detect and rectify       Northwestern Mutual Investment Services, LLC (“NMIS”),
any deviation from the ‘Northwestern Mutual Way.’” (J.A.            an affiliate of NML, was required for any outside business
at 887.) On occasion, NML reviewed Plaintiff’s records:             activity, including unpaid activities and including activities
Plaintiff received a letter from Diane Ertel, a Specialist in the   unrelated to the insurance business. The “Fastrack Agents’
Market Conduct Division of NML, critiquing Plaintiff’s file-        Self-Study Guide” states:
keeping and advising him of procedures that he was expected
to make.                                                              Before you engage in any “outside business activity”
                                                                      which is not a part of your normal insurance and
   Beyond record-keeping regulations, NML exercised its               securities business, you must obtain written permission
ability to influence Plaintiff’s daily operations in other            from NMIS [Northwestern Mutual Investment Services,
manners.       The contract provided for performance                  LLC]. This is required whether or not compensation is
requirements instituted by NML, in addition to potentially            received for the activity. Note the NASD requires all
higher requirements from a General Agent (Cochran). Thus,             outside business activities to be disclosed on Form U-4
Plaintiff was not free to determine his own performance level,        Outside business activities include, but are not limited to:
if he wished to maintain his relationship with NML. Also,
NML’s “Fastrack Agents’ Self-Study Guide” provided                       Full-time, part-time, or self-employment of any sort
detailed rules regarding the use of e-mail and the internet.             away from Northwestern Mutual and NMIS. . . . .
For example, NML stated, “Illustrations may not be sent via
No. 03-5143                    Weary v. Cochran, et al.       17   18   Weary v. Cochran, et al.                     No. 03-5143

    Becoming a trustee, director, officer, partner, etc. of        and granted–otherwise, presumably NML and Cochran could
    any organization or business, (public or private)              have asserted this as the reason for the termination, instead of
    including churches and charitable organizations.               failure to meet production requirements. If Plaintiff did not
                                                                   obtain such permission, then Plaintiff breached the
    Participating in multi-level marketing programs.               contract–this might provide grounds for a separate legal
    Examples include Amway, Mary Kay, Prepaid Legal                action by NML, but this does not prove that NML lacked the
    Services, Inc./The People’s Network (PPLSI/TPN),               ability to control employment opportunities, in the context of
    Rexall Showcase, etc.                                          analysis of the standard for “employee” status. The
                                                                   contractual language clearly granted NML the ability to
(J.A. at 873) (emphasis in original).                              control Plaintiff’s outside work opportunities.
  The contract also contains a relevant provision on                  Moreover, there is no clear indication that Plaintiff’s sales
“exclusive dealing”:                                               work for other companies constituted “employment
                                                                   opportunities,” as opposed to “independent contractor”
  Agent shall do no business for any other company which           opportunities. By the definition of “employment” here, there
  issues annuity contracts, or life insurance or disability        is no evidence that the other insurance companies controlled
  income insurance policies, except in connection with             the manner and means of job performance or required written
  Applications with respect to persons who are then                permission for Plaintiff to sell insurance for NML or other
  insured by the Company to the limit it will issue on them        companies. In fact, the other sales relationships appear to
  or who are otherwise not acceptable for insurance by the         have been more minimal: the other insurance companies did
  Company . . . .                                                  not pay Social Security, retirement benefits, or health
                                                                   insurance; nor did the other companies have production
(J.A. at 464.) Both provisions quoted here grant NML the           requirements. Because these relationships with other
ability to limit and control Plaintiff’s employment                companies were more limited than Plaintiff’s relationship
opportunities.                                                     with NML, it is obvious that if any of the other relationships
  But the exclusivity issue merits further analysis. As the        were of an employment nature, then so too was Plaintiff’s
majority points out, in addition to selling Northwestern           relationship with NML. As a result, there is no way in which
Mutual insurance policies, Plaintiff also sold policies for        Plaintiff’s work for other companies can be cited as
numerous other insurance companies. Plaintiff’s work for           illustrating NML’s lacking the ability to control Plaintiff’s
other insurance companies might be taken to show that              employment opportunities.
Plaintiff had other employment opportunities.                        Hence, it is clear that NML maintained the ability to control
  However, the standard in question is the employer’s ability      employment opportunities, notwithstanding the possibility
to control such opportunities. The regulation and contract         that NML may have granted written permission for Plaintiff
language quoted above evince NML’s “ability” to limit              to engage in independent contractor work for other
outside employment, regardless of whether NML actually             companies and notwithstanding the possibility that Plaintiff
chose to exercise this ability. The record does not contain        (by failing to get written permission) breached contractual
written permission requests, but they may have been made           provisions relating to NML’s ability to control outside work.
No. 03-5143                    Weary v. Cochran, et al.      19    20    Weary v. Cochran, et al.                    No. 03-5143

Hence, both of the key factors favor of the conclusion that        contemporaneous work selling insurance for other companies.
Plaintiff was NML’s employee.                                      On the other hand, Cochran helped to train Plaintiff, through
                                                                   weekly performance reviews, monthly training meetings,
                              II.                                  annual seminars, and other meetings. (J.A. at 1202.) Thus,
                                                                   Plaintiff’s skill was not acquired independently of his
  The other Darden factors must be considered, although            relationship with NML–although, for the reasons explained in
none of them is as important, individually, as either of the two   the second Darden factor, below, the training from Cochran
key factors analyzed above. Satterfield, 295 F.3d at 617;          begs the question of Plaintiff’s status.
Simpson, 100 F.3d at 443.
                                                                     Still, on balance, because the skill of selling insurance is a
                    i. The skill required                          general one, the majority may be correct in its conclusion that
                                                                   this factor favors independent contractor status.
  The majority errs in defining this factor as relating to the
amount of skill required to do a job. (It goes without saying           ii. The source of the instrumentalities and tools
that many individuals are employed in jobs that require an
extremely high skill level.) The legal issue here is not the          Plaintiff worked in Cochran’s office for approximately six
amount of skill required but, rather, whether the skill is in an   years, where presumably Plaintiff used Cochran’s office
independent discipline (or profession) that is separate from       supplies and facilities. The use of Cochran’s tools and
the business and could be (or was) learned elsewhere.              instrumentalities begs the question of whether Plaintiff was an
Hojnacki v. Klein-Acosta, 285 F.3d 544, 550 (7th Cir. 2002)        “employee.” Due to the similarities in Cochran’s and
(“Dr. Hojnacki did not derive her medical skills from her          Plaintiff’s contracts and positions, it is indisputable that if
employment with the DOC.”); Schwieger v. Farm Bureau Ins.          Plaintiff was “employee” of NML, then so too was Cochran.
Co., 207 F.3d 480, 485 (8th Cir. 2000) (“First, regarding ‘the     If Cochran was an “employee” of NML, then the tools and
skill required,’ Schwieger does not dispute that throughout        instrumentalities that he offered to Plaintiff can be attributed
her relationship with Farm Bureau she considered herself an        to NML. Although neither party briefed the issue of
insurance professional: she was licensed by the state of           Cochran’s relationship to NML, the possibility that he was an
Nebraska at her own expense, was subject to a code of              employee of NML must be entertained.
professional ethics, and had been certified by professional
associations. Thus, this factor weighs heavily in favor of            Regardless of Cochran’s role here, additionally, Plaintiff
independent contractor status.”); Mulzet v. R.L. Reppert, Inc.,    cites approved and prepared marketing literature as
2002 U.S. App. LEXIS 27369, at *3 (3rd Cir. Dec. 11, 2002)         instrumentalities and tools. Plaintiff stated in an affidavit,
(“The first factor, the skill required, cuts in [alleged           “Until 1992, I was required to send all supply requisitions for
employer] Reppert's favor. The District Court found that the       NML products through my general agent. At all times, I had
skill required to hang drywall was based on Mulzet's many          to order all stationery from NML in a form controlled by
years of independent experience, rather than any teaching by       NML.” (J.A. at 1202.) In turn, NML attempts to show that
Reppert.”) (unpublished) (citations omitted).                      Plaintiff provided his own office supplies, such as computer,
                                                                   postage, internet, and phone service.
  The skill of selling insurance is best conceived of as general
one, not specific to NML’s business. This explains Plaintiff’s
No. 03-5143                   Weary v. Cochran, et al.     21    22       Weary v. Cochran, et al.                             No. 03-5143

   Given the difficulties in discerning Cochran’s relationship   iv. The duration of the relationship between the parties
to NML and the other ambiguous evidence, here, this factor
is ambiguous.                                                      It is undisputed that there was a long relationship between
                                                                 the Plaintiff and both Defendants, lasting from 1973 to 2000.
               iii. The location of the work                     (The district court acknowledged this.)
   Plaintiff worked in Cochran’s office between 1973 and              v. Whether the hiring party has the right to assign
1979. After 1979, it does not appear that Plaintiff worked in              additional projects to the hired party
an NML-affiliated office. Yet Plaintiff was required to attend
regular weekly and monthly meetings with Cochran, which             There is no indication that NML or Cochran had the right
presumably were at Cochran’s office or an NML office. Also,      to assign additional projects. This factor favors NML.
Plaintiff testified that he was required by Cochran to rent
commercial office space, instead of telecommuting. Again,
all of this involves Cochran and thus begs the question of       vi. The extent of the hired party's discretion over when
Plaintiff’s relationship with NML, for the reasons stated                         and how long to work
under the second Darden factor.
                                                                   Requirements as to what hours or how many hours an
  Also, this factor is of limited significance, given the        employee must work help to establish control of an
prevalence in our current economy of arrangements whereby        individual. Although there were no precise requirements of
employees telecommute (from home or other remote                 what hours or how many hours Plaintiff had to work, there
locations). E.g., Susan J. Wells, For Stay-Home                  were work quantity requirements that are the very subject of
Workers, Speed Bumps on the Telecommute, N.Y.                    this lawsuit–the contract contains NML requirements and
Times, Aug. 17, 1997, available at                               General Agents’ (allegedly discriminatory, in the present
http://commtechlab.msu.edu/Humans/heeter/PortalReports/          case) sales requirements, above those required by NML. In
NYTimesTelecommute.html (“Forty-two percent of                   fact, these work quantity requirements almost certainly
companies of various sizes have telecommuting                    imposed de facto requirements over what hours and how
arrangements, according to a 1996 study of 305 North             many hours must be worked. In practice, a certain minimum
American business executives by the Olsten Corp., a              number of hours would generally be needed in order to have
Melville, N.Y., staffing services company. . . . Estimates of    a reasonable chance to meet the performance requirements.
the number of American telecommuters range from 9 million        Additionally, if a Special Agent is nearing a performance
to 42 million.”). This factor is not cited as relevant in        evaluation deadline, then he may have to work on a given
Simpson, 100 F.3d at 443.                                        afternoon, to have a chance at meeting the performance
                                                                 requirements.1
  This factor yields no clear conclusion and is of limited
importance.
                                                                      1
                                                                       Plaintiff never sets forth this precise reasoning in his brief. Thus,
                                                                 the majority claims that P laintiff admits that, aside from m eetings, NML
                                                                 exercised no control over hours. But, given that Plaintiff has presented all
                                                                 of the relevant evidence, this Court is not at all bound by Plaintiff’s failure
                                                                 to make the precise argument as to performance requirements dictating
No. 03-5143                     Weary v. Cochran, et al.      23    24    Weary v. Cochran, et al.                      No. 03-5143

  Also, Plaintiff’s work in Cochran’s office between 1973             Yet there are countervailing considerations. It is noted that
and 1979 imposed actual time constraints–Cochran would              Plaintiff received travel reimbursements, which might be
penalize Plaintiff for not having a secretary for at least twenty   characteristic of an employee–though perhaps independent
hours per week. The work in Cochran’s office, and the               contractors also receive such advances. But this does not
additional performance requirements imposed by Cochran,             appear sufficiently telling to alter the rest of the analysis of
beg the question of Plaintiff’s relationship with NML, for the      this factor. Another consideration is the “Quality Incentive
reasons stated under the second Darden factor, above.               Compensation” system, which appears to create bonuses and
                                                                    incentives that are more characteristic of an employment
  In addition, the exclusivity provisions referenced above, in      relationship than a piece-meal independent contractor
the first part of this opinion (contractual provisions limiting     relationship. Also, a Special Agent’s renewal commissions
Plaintiff’s ability to work for other companies), imposed           did not fully vest until the agent worked for NML for fifteen
controls on Plaintiff’s working hours.                              years–this would promote a long-term relationship that would
                                                                    appear to be more of an employment nature.
   Finally, as the majority notes, Plaintiff was required to
attend periodic meetings, which, of course, meant that                Hence, although the factor still favors NML, since Plaintiff
Plaintiff did not have discretion to decline to work at the time    was paid on commission, not salary, the other considerations
of the meetings.                                                    appear to temper the conclusion.
  On balance, this factor favors “employee” status: NML did              viii. The hired party's role in hiring and paying
not control Plaintiff’s working hours, but NML’s performance                                assistants
requirements established a high level of de facto control of
hours, and NML required Plaintiff to attend meetings.                  Plaintiff states, in an affidavit: “Between 1973 and 1976,
                                                                    Mr. Cochran hired and paid for my secretary. . . . Between
                  vii. The method of payment                        1976 and 1979, Mr. Cochran’s office manager hired my
                                                                    secretary and I was responsible for a portion of her salary.”
  The contract specifies “commissions” at specified rates,          (J.A. at 1210.) After 1979, Cochran would penalize Plaintiff
with thirty days advance notice of reduction in rates.              for not having a secretary for at least twenty hours per week.
Although the contract provides for Cochran to pay the               Cochran’s paying for a secretary or requiring a secretary begs
commissions to Plaintiff, it also provides that NML sets the        the question of Plaintiff’s relationship with NML, for the
commission rates. Id. Cochran was paid directly by NML,             reasons stated under the second Darden factor, directly above.
making it likely that the money he paid Plaintiff came from
NML. The fact that Plaintiff was paid in commission, not               The majority states that Cochran’s requiring Plaintiff to hire
salary would suggest that Plaintiff was an “independent             a secretary “is insignificant, however, because it says nothing
contractor” with respect to NML. Wolcott v. Nationwide Mut.         about whether Northwestern Mutual or Cochran played any
Ins. Co., 884 F.2d 245, 251 (6th Cir. 1989); Schwieger v.           role in hiring or paying Weary’s assistants; it only establishes
Farm Bureau Ins. Co., 207 F.3d 480, 486 (8th Cir. 2000).            that Cochran required Weary to hire and pay a secretary to
                                                                    work at least twenty hours per week.” This is fallacious.
                                                                    Plaintiff had only a limited role in hiring assistants, if the only
working ho urs.
No. 03-5143                    Weary v. Cochran, et al.      25    26   Weary v. Cochran, et al.                   No. 03-5143

reason that he hired a secretary was his employer’s                the purposes of employment taxes, the term ‘employee’
requirement that he do so.                                         includes ‘any individual who, under the usual common law
                                                                   rules applicable in determining the employer-employee
  Due to the ambiguities as to Cochran’s relationship with         relationship, has the status of an employee’. Sec. 3121(d)(2);
NML (as described in the second Darden factor), there is no        accord sec. 3306(i).”).
clear conclusion, here.
                                                                     Nor do the tax consequences for NML appear to be
ix. Whether the work is part of the regular business of            relevant–the factor here is simply the provision of benefits.
                  the hiring party                                 Ordinarily, an independent contractor would not receive
                                                                   benefits from any one client. Ordinarily, a full-time employee
  The majority rightly concedes that Plaintiff was a part of       would receive benefits from an employer. Plaintiff received
the regular business of the hiring party.                          benefits from NML, which suggests that Plaintiff was NML’s
                                                                   employee. NML points out that Plaintiff was not covered by
        x. Whether the hiring party is in business                 a workers’ compensation plan, which might temper the
                                                                   conclusion here a bit–but this would not change the overall
  As the majority correctly states, this factor is of limited      conclusion that NML offered benefits to Plaintiff.
relevance. (This factor is not cited as relevant in Simpson v.
Ernst & Young, 100 F.3d at 443.)                                           xii. The tax treatment of the hired party
          xi. The provision of employee benefits                     In the factor directly above, it is mentioned that NML
                                                                   withheld Social Security taxes, but that the statute allows a
   NML withheld Social Security and paid retirement benefits       business to do this for an insurance salesperson who is not a
and health insurance. NML apparently set aside fund for            common-law employee.            Thus, the Social Security
Plaintiff that was termed the “Persistency Fee Guarantee           withholding does not appear to favor Plaintiff.
Fund” and was governed by the Employee Retirement Income
Security Act (“ERISA”). (J.A. at 862-68); (Plaintiff’s Brief         Plaintiff’s tax returns were filed on a “Sole Proprietor”
at 5). Also, NML offered a defined benefit plan, the Agent’s       form, at times listing his “Business name” as “John F. Weary
Retirement Plan, also governed by ERISA. This would all            Insurance.” (J.A. at 619.) Never did Plaintiff list an
favor Plaintiff.                                                   “Employer ID number.”           Plaintiff deducted business
                                                                   expenses, which would not have been allowed by a common-
  NML suggests that it was allowed to contribute group             law employee. 26 U.S.C. § 62 (“The deductions allowed by
benefits to Plaintiff and to withhold Social Security taxes only   this chapter (other than by part VII of this subchapter) which
because of Plaintiff’s status as an “independent contractor.”      are attributable to a trade or business carried on by the
NML cites two tax definitions of “employee” that include           taxpayer, if such trade or business does not consist of the
both common-law employees and insurance salespersons. 26           performance of services by the taxpayer as an employee.”)
U.S.C. §§ 3121(d)(3)(B), 7701(a)(20). There is no support          (emphasis added).
for NML’s position here, in the sources cited; rather, the tax
court case that NML cites indicates that Social Security taxes        There appears to be additional evidence of Plaintiff’s tax
could be withheld for an ordinary, common-law employee.            treatment as an independent contractor. This evidence does
Ewens & Miller, Inc. v. Comm’r, 117 T.C. 263 (2001) (“For
No. 03-5143                        Weary v. Cochran, et al.         27    28       Weary v. Cochran, et al.                       No. 03-5143

not appear to be needed, as the matter appears to be clear.               “independent contractor” status (under factor i, Plaintiff’s
Plaintiff’s citing to the Social Security tax withholding                 general skills in selling insurance were gleaned partly through
appears to be rendered irrelevant by NML’s argument on that               training from Cochran).
matter. Plaintiff appears to generally concede that his tax
treatment was not one of an employee–arguing, correctly, that                The two remaining factors yield no immediate conclusions,
this factor is not dispositive in the case.2 The factor is                due to Cochran’s unclear relationship with NML. See factors
relevant, though.                                                         ii (source and instrumentalities), viii (role in hiring and
                                                                          paying assistants). However, in all reality, it is difficult not
  Plaintiff was not treated as an employee of NML for tax                 to view these factors as favoring “employee” status. The only
purposes.                                                                 basis for any relationship between Plaintiff and Cochran was
                                                                          through NML. NML expressly delegated authority to
   The Darden factors overall are ambiguous or else favor the             Cochran, including specific powers, such as the ability to set
conclusion that Plaintiff was an “employee” of NML. Two                   performance requirements above those set by NML–this
factors are unimportant (factor iii, the location of work, and            power, of course, ultimately gave rise to this lawsuit (with
factor x, whether the hiring party is in business). (Neither of           Plaintiff’s allegations that Cochran’s performance
these factors would clearly favor “independent contractor”                requirements were discriminatory). The personnel structure
status: factor iii is ambiguous, and factor x favors “employee”           here–with a supervisor exercising control over a subordinate,
status.)                                                                  sharing tools and instruments (factor ii), dictating work
                                                                          location (factor iii), and requiring that the subordinate hire a
   Four factors favor “employee” status. As the majority                  secretary for a minimum of twenty hours per week (factor
stated, factors iv (duration of relationship) and ix (part of             viii)–indicates delegated control that is characteristic of
regular business or company) favor Plaintiff’s argument.                  corporate employment relationships.3 To the considerable
Factor v favors Plaintiff’s argument, because, NML’s                      extent that Cochran controlled Plaintiff, through authority
performance requirements limited Plaintiff’s discretion as to             expressly delegated by NML, both Cochran and Plaintiff may
working hours, NML required Plaintiff to attend certain                   have been employees of NML.
meetings, and Cochran required Plaintiff to hire a secretary
for at least twenty hours per week. Also, factor xi favors                  Thus, in conclusion to the analysis of the remaining Darden
“employee” status, since benefits were provided. Likewise,                factors (aside from the two most important factors, analyzed
four factors favor NML’s position: factors i (the skill                   in the first part of the opinion, above), the remaining factors
required), v (additional projects), vii (method of payment),              that yield an immediate conclusion produce a split result, with
and xii (tax treatment). Although one of the factors favoring             four factors on each side. Two other significant factors
“employee” status is slightly ambiguous (under factor v,                  appeared ambiguous, due to Cochran’s role; but, upon closer
NML only exercised de facto control of working hours), the                scrutiny, in light of the fact that Cochran’s control of Plaintiff
same ambiguity exists for one of the factors favoring

    2                                                                          3
      Plaintiff’s Brief at 23 (“even though Weary was considered an            A corporate employment relationship is also evinced by the Agents
independent contractor or sole proprietor for income tax purposes, that   Man ual of Information statement that “[a]s a N orthwestern M utual Life
fact is not de terminative of the employm ent relationship under the      agent . . . . You are part of a company that has a reputation o f being
ADE A.”).                                                                 knowledgeable, caring . . . .” (J.A. at 754) (emphasis added).
No. 03-5143                    Weary v. Cochran, et al.     29

was delegated and defined by NML, it appears that both
Cochran and Plaintiff were “employees” of NML.
                         Conclusion
  The first part of this opinion set forth the two most
important factors of the analysis. These factors both favored
“employee” status: NML had the ability to control job
performance and the ability to control employment
opportunities. The second part of the opinion examined the
remaining Darden factors (aside from the two most important
ones). At most, NML might show that these remaining
factors are split, on balance; however, such an ambiguous
showing would not overcome the two most important factors.
Moreover, in light of NML’s delegation to Cochran of power
to control Plaintiff’s work, it does not appear that NML can
even legitimately make a showing that the remaining factors
are evenly split; the remaining factors, on balance, favor
“employee” status for Plaintiff.
  Finally, it is important to note the larger framework in
which the analysis takes place. In Lilly v. BTM Corp., this
Court stated that “[t]he term ‘employee’ is to be given a broad
construction in order to effectuate the remedial purposes of
the ADEA.” 958 F.2d at 750. This consideration is not
necessary to reach the conclusion that Plaintiff was an
“employee” of NML; but the principle enunciated in Lilley
provides even more support for the conclusion that, to the
extent that there are large ambiguities regarding certain
relevant factors, the analysis should be resolved in favor of a
conclusion that Plaintiff was an “employee” of NML. On the
record before us, it cannot reasonably be argued that, on
balance, the relevant factors unambiguously defeat Plaintiff’s
“employee” status.
  For the aforementioned reasons, I respectfully dissent.
