The 8th Circuit recently had a case involving a person who was the exclusive marketing representative of a northern Iowa brokerage company representing liquor and wine companies. Since Iowa is a control state, the suppliers provide liquor to the state, which is then resold to customers, such as bars and liquor stores. The representative had no written employment agreement and was paid a fixed monthly stipend that was not calculated as a commission or bonus based upon monthly sales volume of particular products. She received 1099’s rather than W-2’s and reported the income as business expense deductions on Schedule C of her IRS form. She worked out of her home, paid her own travel expenses, which were substantial, as well as the cost of her cell phone and computer. She also had a part-time job as a scheduler and a bartender for a local convention center. Evidence was in dispute as to any sort of customer call requirement or how much the wholesaler talked to the representative. She was required to attend monthly sales meetings and submit weekly reports. As a representative had sued under the Age Discrimination Act, it was necessary for the Court to make a determination as to whether or not she was an employee, specifically to determine whether or not instructions to the jury were proper and complete. The Court adopted the common law test derived from a Supreme Court case, which basically holds that a hired party is an employee under the general common law of agency if the hiring party has the right to control the manner and means by which the product is accomplished. It goes on to list a number of factors, including skills, instrumentalities and tools, location of the work, duration of the relationship, control over hours, setting of payment, whether the worker is part of the regular business of the hiring party, the providing of employee benefits and treatment of the hired party. None of these factors are considered to be determinative, and must be assessed and weighed. The Court ruled that it did not commit irreversible errors in its jury instructions by not listing each factor, by rewording several or by combing factors listed in two different cases.