Alberty-Vélez v. Corporación de Puerto Rico
U.S. Court of Appeals, First Circuit
In 1993, Victoria Lisa Alberty-Vélez (Alberty) began to cohost a new television show, Desde Mi Pueblo, on WIPR, a television station in Puerto Rico. The show profiled Puerto Rican cities and towns. Instead of signing a single contract, Alberty signed a new contract for each episode. Each contract obligated her to work a certain number of days. She was not obligated to do other work for WIPR, and WIPR was not obligated to contract with her for other work.

During the filming, Alberty was responsible for providing her own clothing, shoes, accessories, hairstylist, and other services and materials. She was paid a lump sum, ranging from $400 to $550, for each episode. WIPR did not withhold income or Social Security taxes and did not provide health insurance, life insurance, a retirement plan, paid sick leave, maternity leave, or vacation pay. Alberty became pregnant, and after November 1994, WIPR stopped contracting with her. She filed suit in a federal district court against WIPR's owner, Corporación de Puerto Rico para la Difusión, alleging in part discrimination on the basis of her pregnancy in violation of a federal statute. The court issued a judgment in the defendant's favor. Alberty appealed to the U.S. Court of Appeals for the First Circuit.

Justice Howard
We will apply the common law test to determine whether Alberty was WIPR's employee or an independent contractor. Under the common law test, a court must consider the hiring party's right to control the manner and means by which the product is accomplished. Among other factors relevant to this inquiry are the skills required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work;

the method of payment; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party

Several factors favor classifying Alberty as an independent contractor. First, a television actress is a skilled position requiring talent and training not available on-the-job. In this regard, Alberty possesses a master's degree in public communications and journalism; is trained in dance, singing, and modeling; taught within the drama department at the University of Puerto Rico; and acted in several theater and television productions prior to her affiliation with Desde Mi Pueblo

Second, Alberty provided the tools and instrumentalities necessary for her to perform. Specifically, she provided, or obtained sponsors to provide, the costumes, jewelry, and other image-related supplies and services necessary for her appearance.

Third, WIPR could not assign Alberty work in addition to filming Desde Mi Pueblo.

Fourth, the method of payment favors independentcontractor status. Alberty received a lump sum fee for each episode. Her compensation was based on completing the filming, not the time consumed. If she did not film an episode, she did not get paid.

Fifth, the work of hiring television cohosts was part of WIPR's business.

Sixth, Alberty's tax treatment suggests independentcontractor status

Despite these factors favoring independent-contractor status, Alberty argues that she was WIPR's employee because WIPR controlled the manner of her work by directing her during filming, dictated the location of her work by selecting the filming sites, and determined the hours of her work. While "control" over the manner, location, and hours of work is often critical to the independent contractor-employee analysis, it must be considered in light of the work performed and the industry at issue. Considering the tasks that an actor performs, we do not believe that the sort of control identified by Alberty necessarily indicates employee status.

Alberty's work on Desde Mi Pueblo required her to film at the featured sites, at the required times, and to follow the instructions of the director. WIPR could only achieve its goal of producing its program by having Alberty follow these directions. Just as an orchestra musician is subject to the control of the conductor during concerts and rehearsals, an actor is subject to the control of the director during filming
While no one factor is dispositive [determines the outcome], it is clear, based on the parties' entire relationship, that a reasonable fact finder could only conclude that Alberty was an independent contractor. Accordingly, we conclude that Alberty was an independent contractor as a matter of law and therefore cannot maintain this action against WIPR

CRITICAL THINKING ABOUT THE LAW
When courts establish legal tests, they describe conditions that must be met for the test to be passed. In Case 16-1, the plaintiff hoped she could meet the standards of the common-law test attached to an agency relationship

To meet this test, a large range of facts had to be present. If the facts all fell into place in a particular way, the plaintiff would prevail.

1. Identify specific facts from Case 16-1 that might permit the plaintiff to prevail.
Clue: Go to the location in the decision where the court goes step-by-step through the test, and pick out a few instances in which one part of the test was met because of a particular set of circumstances.

2. What "facts," had they existed, would have allowed the plaintiff to win this case?
Clue: Read the court's statement of the necessary conditions for establishing agency. Then imagine some "facts" that would satisfy those conditions.