John Weary v. William S. Cochran

CLAY, Circuit Judge,

dissenting.

In determining whether Plaintiff was an “employee” of NML or Cochran under the Age Discrimination in Employment Act, the majority makes two major errors. First, the majority misstates applicable law by omitting the two most important factors in the definition of “employee”: the employer’s ability to control job performance and the employer’s ability to control 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 , 112 S.Ct. 1344 , 117 L.Ed.2d 581 (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 , 112 S.Ct. 1344 (quoting Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 751-52 , 109 S.Ct. 2166 , 104 L.Ed.2d 811 (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 *529 short time of one another, creating some confusion as to the standard for determining “employee” status.

A later case ruled on the issue of whether or not Lilley (filed on March 12, 1992) was overruled by Darden (filed on March 24, 1992) and also clarified the definition of “employee.” This Court stated that Lilley was not overruled, because Darden had adopted the same standard as that in Lil-ley, for defining the term “employee”:

Lilley, like Darden , defines the underlying common denominator of the employer/employee rubric as the employer’s ability to control job performance and employment opportunities of the aggrieved individual as the most important of many elements to be evaluated in resolving the issue after assessing and weighing all of the incidents of the relationship with no one factor being decisive ....

Simpson v. Ernst & Young, 100 F.3d 486 , 442 (6th Cir.1996). The other factors listed in Darden retain importance but none of the other factors is as significant as each of the two most important factors: the employer’s ability to control job performance and the employer’s ability to control employment opportunities. Simpson’s interpretation of Darden has been reiterated by this Court:

for the purposes of the ADA and other Civil Rights Acts, an employer/employee relationship is identified by considering: the entire relationship, with the most important factor being the employer’s ability to control job performance and employment opportunities of the aggrieved individual.

Satterfield v. Tennessee, 295 F.3d 611, 617 (6th Cir.2002) (citations and internal quotation marks omitted). Overall, the Darden test, as interpreted by this Court in Simpson and Satterfield , considers numerous factors, the most important of which are an employer’s ability to control job performance and an employer’s ability to control an employee’s employment opportunities.

At the outset, it is worth noting that the functional standard stated in Simpson (and reiterated in Satterfield) leaves little, if any, room for considerations of contractual disclaimers of an employment relationship. This runs contrary to the majority’s citation to the contract’s boilerplate language attempting to disclaim an employment relationship in the present case. See also Schwieger v. Farm Bureau Ins. Co., 207 F.3d 480, 483 (8th Cir.2000) (“The existence of a contract referring to a party as an independent contractor does not end the inquiry, because an employer may not avoid Title VII by affixing a label to a person that does not capture the substance of the employment relationship.”) (citations and internal quotation marks omitted).

Moreover, even if the contractual disclaimer were relevant, its attempt to avoid an employment relationship is belied by terminology in other important documents. The Agents Manual of Information, distributed to Plaintiff by NML states, “As a Northwestern Mutual Life agent.... You are part of a company that has a reputation of being knowledgeable, caring....” (J.A. at 754.) Under ordinary parlance, an independent contractor would not be considered “part of a company.” Rather, only an employee would merit such designation. Thus, to the extent that terminology is relevant, it does not clearly favor NML’s position.

Similarly, the majority is wrong to attribute anything more than token significance to the fact that NML initially had succeeded in convincing Plaintiff that he was an “independent contractor.” Again, this is irrelevant to the functional standard that is employed in defining “employee” status. See also Armbruster v. Quinn, 711 *530 F.2d 1332, 1340 (6th Cir.1983) (“Though the manner in which the parties view the relationship is some evidence as to whether the manufacturer’s representative in any particular case will be deemed an ‘employee’ for Title VII purposes, it is not determinative of that question.”).

A multi-factored, functional analysis governs this case. The analysis begins with the first of the two most important factors, the ability to control job performance. Here, it is instructive that the contract reserved for NML the right to adopt regulations limiting a Special Agent’s freedom to conduct business. This provision gave NML widespread “ability to control job performance.” Simpson, 100 F.3d at 442 (emphasis added).

Beyond retaining the general ability to control job performance by adopting regulations, NML’s contract with Plaintiff also expressly reserved more specific mechanisms of control, and NML undertook measures, including the adoption of detailed regulations, that actually controlled Plaintiffs performance. Plaintiffs record-keeping and submitting of insurance applications were subject to review, according to NML guidelines. In the contract, NML expressly reserved the right to require Plaintiff to surrender “all records” relating to transactions to NML or to Cochran. (J.A. at 464) (item 11, Records). In the Field Management Business Conduct Guidelines, Plaintiff was advised by NML: “You must be aware of the need to prevent, detect and rectify any deviation from the ‘Northwestern Mutual Way.’ ” (J.A. at 887.) On occasion, NML reviewed Plaintiffs records: Plaintiff, received a letter from Diane Ertel, a Specialist in the Market Conduct Division of NML, critiquing Plaintiffs file-keeping and advising him of procedures that he was expected to make.

Beyond record-keeping regulations, NML exercised its ability to influence Plaintiffs daily operations in other manners. The contract provided for performance requirements instituted by NML, in addition to potentially higher requirements from a General Agent (Cochran). Thus, Plaintiff was not free to determine his own performance level, if he wished to maintain his relationship with NML. Also, NML’s “Fastraek Agents’ Self-Study Guide” provided detailed rules regarding the use of email and the internet. For example, NML stated, “Illustrations may not be sent via e-mail.” (J.A. at 871.) E-mail solicitations and other solicitations were subject to NML review. (J.A. at 871) (“Any variable product-related e-mail that is sent to multiple individuals, either collectively or individually, and which repeats the same central message or theme is considered sales material. As such, it must be reviewed and approved before use as described above.”). Plaintiff was not allowed to develop his own illustrations for presentations, independently of NML. (J.A. at 760) (agent’s manual, stating, “To ensure accuracy, use only illustrations produced through the Northwestern Mutual LINK proposal system.”). Plaintiff was subject to precise rules on proper sales presentations. (J.A. at 760) (“Do not ... characterize a lower-than-current-scale illustration as a ‘worst case’ scenario.... ”). , As can be seen, these rules were highly detailed and specific; they governed daily operations.

The second key factor, the employer’s ability to control employment opportunities, evaluates whether the individual is free to engage in other employment, outside of a given relationship. In the present case, written permission from Northwestern Mutual Investment Services, LLC (“NMIS”), an affiliate of NML, was required for any outside business activity, including unpaid activities and including activities unrelated to the insurance busi *531 ness. The “Fastrack Agents’ Self-Study Guide” states:

Before you engage in any “outside business activity” which is not a part of your normal insurance and securities business, you must obtain written permission from NMIS [Northwestern Mutual Investment Services, LLC]. This is required whether or not compensation is received for the activity. Note the NASD requires all outside business activities to be disclosed on Form U-4 Outside business activities include, but are not limited to:

Full-time, part-time, or self-employment of any sort away from Northwestern Mutual and NMIS.

Becoming a trustee, director, officer, partner, etc. of any organization or business, (public or private) including churches and charitable organizations. Participating in multi-level marketing programs. Examples include Amway, Mary Kay, Prepaid Legal Services, Inc./The People’s Network (PPLSI/TPN), Rexall Showcase, etc.

(J.A. at 873) (emphasis in original).

The contract also contains a relevant provision on “exclusive dealing”:

Agent shall do no business for any other company which issues annuity contracts, or life insurance or disability income insurance policies, except in connection with Applications with respect to persons who are then insured by the Company to the limit it will issue on them or who are otherwise not acceptable for insurance by the Company....

(J.A. at 464.) Both provisions quoted here grant NML the ability to limit and control Plaintiffs employment opportunities.

But the exclusivity issue merits further analysis. As the majority points out, in addition to selling Northwestern Mutual insurance policies, Plaintiff also sold policies for numerous other insurance companies. Plaintiffs work for other insurance companies might be taken to show that Plaintiff had other employment opportunities.

However, the standard in question is the employer’s ability to control such opportunities. The regulation and contract language quoted above evince NML’s “ability” to limit outside employment, regardless of whether NML actually chose to exercise this ability. The record does not contain written permission requests, but they may have been made and granted — otherwise, presumably NML and Cochran could have asserted this as the reason for the termination, instead of failure to meet production requirements. If Plaintiff did not obtain such permission, then Plaintiff breached the contract — this might provide grounds for a separate legal action by NML, but this does not prove that NML lacked the ability to control employment opportunities, in the context of analysis of the standard for “employee” status. The contractual language clearly granted NML the ability to control Plaintiffs outside work opportunities.

Moreover, there is no clear indication that Plaintiffs sales work for other companies constituted “employment opportunities,” as opposed to “independent contractor” opportunities. By the definition of “employment” here, there is no evidence that the other insurance companies controlled the manner and means of job performance or required written permission for Plaintiff to sell insurance for NML or other companies. In fact, the other sales relationships appear to have been more minimal: the other insurance companies did not pay Social Security, retirement benefits, or health insurance; nor did the other companies have production requirements. Because these relationships with other companies were more limited than *532 Plaintiffs relationship with NML, it is obvious that if any of the other relationships were of an employment nature, then so too was Plaintiffs relationship with NML. As a result, there is no way in which Plaintiffs work for other companies can be cited as illustrating NML’s lacking the ability to control Plaintiffs employment opportunities.

Hence, it is clear that NML maintained the ability to control employment opportunities, notwithstanding the possibility that NML may have granted written permission for Plaintiff to engage in independent contractor work for other companies and notwithstanding the possibility that Plaintiff (by failing to get written permission) breached contractual provisions relating to NML’s ability to control outside work. Hence, both of the key factors favor of the conclusion that Plaintiff was NML’s employee.

II.

The other Darden factors must be considered, although none of them is as important, individually, as either of the two key factors analyzed above. Satterfield, 295 F.3d at 617 ; Simpson, 100 F.3d at 443.

i. The skill required

The majority errs in defining this factor as relating to the amount of skill required to do a job. (It goes without saying that many individuals are employed in jobs that require an extremely high skill level.) The legal issue here is not the amount of skill required but, rather, whether the skill is in an independent discipline (or profession) that is separate from the business and could be (or was) learned elsewhere. Hojnacki v. Klein-Acosta, 285 F.3d 544, 550 (7th Cir.2002) (“Dr. Hojnacki did not derive her medical skills from her employment with the DOC.”); Schwieger v. Farm Bureau Ins. Co., 207 F.3d 480, 485 (8th Cir.2000) (“First, regarding ‘the skill required,’ Schwieger does not dispute that throughout her relationship with Farm Bureau she considered herself an insurance professional: she was licensed by the state of Nebraska at her own expense, was subject .to a code of professional ethics, and had been certified by professional associations. Thus, this factor weighs heavily in favor of independent contractor status.”); Mulzet v. R.L. Reppert, Inc., 54 Fed.Appx. 359 (3rd Cir. Dec. 11, 2002), 2002 U.S.App. LEXIS 27369, at *3 (“The first factor, the skill required, cuts in [alleged employer] Reppert’s favor. The District Court found that the skill required to hang drywall was based on Mulzet’s many years of independent experience, rather than any teaching by Reppert.”) (unpublished) (citations omitted).

The skill of selling insurance is best conceived of as general one, not specific to NML’s business. This explains Plaintiffs contemporaneous work selling insurance for other companies. On the other hand, Cochran helped to train Plaintiff, through weekly performance reviews, monthly training meetings, annual seminars, and other meetings. (J.A. at 1202.) Thus, Plaintiffs skill was not acquired independently of his relationship with NML — although, for the reasons explained in the second Darden factor, below, the training from Cochran begs the question of Plaintiffs status.

Still, on balance, because the skill of selling insurance is a general one, the majority may be correct in its conclusion that this factor favors independent contractor status.

ii. The source of the instrumentalities and tools

Plaintiff worked in Cochran’s office for approximately six years, where presumably Plaintiff used Cochran’s office sup *533 plies and facilities. The use of Cochran’s tools and instrumentalities begs the question of whether Plaintiff was an “employee.” Due to the similarities in Cochran’s and Plaintiffs contracts and positions, it is indisputable that if Plaintiff was “employee” of NML, then so too was Cochran. If Cochran was an “employee” of NML, then the tools and instrumentalities that he offered to Plaintiff can be attributed to NML. Although neither party briefed the issue of Cochran’s relationship to NML, the possibility that he was an employee of NML must be entertained.

Regardless of Cochran’s role here, additionally, Plaintiff cites approved and prepared marketing literature as instrumen-talities and tools. Plaintiff stated in an affidavit, “Until 1992, I was required to send all supply requisitions for NML products through my general agent. At all times, I had to order all stationery from NML in a form controlled by NML.” (J.A. at 1202.) In turn, NML attempts to show that Plaintiff provided his own office supplies, such as computer, postage, internet, and phone service.

Given the difficulties in discerning Cochran’s relationship to NML and the other ambiguous evidence, here, this factor is ambiguous.

iii.The location of the work

Plaintiff worked in Cochran’s office between 1973 and 1979. After 1979, it does not appear that Plaintiff worked in an NML-affiliated office. Yet Plaintiff was required to attend regular weeMy and monthly meetings with Cochran, which presumably were at Cochran’s office or an NML office. Also, 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 Plaintiffs relationship with NML, for the reasons stated under the second Darden factor.

Also, this factor is of limited significance, given the prevalence in our current economy of arrangements whereby employees telecommute (from home or other remote locations). E.g., Susan J. Wells, For Stay-Home Workers, Speed Bumps on the Telecommute, N.Y. Times, Aug. 17, 1997, available at http://commtech-lab.msu.edu/Humans/heeter/PortalReports /NYTimesTelecommute.html (“Forty-two percent of companies of various sizes have telecommuting arrangements, according to a 1996 study of 305 North American business executives by the Olsten Corp., a Melville, N.Y., staffing services company.... Estimates of the number of American telecommuters range from 9 million to 42 million.”). This factor is not cited as relevant in Simpson, 100 F.3d at 443.

This factor yields no clear conclusion and is of limited importance.

iv.The duration of the relationship between the parties

It is undisputed that there was a long relationship between the Plaintiff and both Defendants, lasting from 1973 to 2000. (The district court acknowledged this.)

v.Whether the hiring party has the right to assign additional projects to the hired party

There is no indication that NML or Cochran had the right to assign additional projects. This factor favors NML.

vi.The extent of the hired party’s discretion over when and how long to work

Requirements as to what hours or how many hours an employee must work help to establish control of an individual. Al *534 though there were no precise requirements of what hours or how many hours Plaintiff had to work, there were work quantity requirements that are the very subject of this lawsuit — -the contract contains NML requirements and General Agents’ (allegedly discriminatory, in the present case) sales requirements, above those required by NML. In fact, these work quantity requirements almost certainly imposed de facto requirements over what hours and how many hours must be worked. In practice, a certain minimum number of hours would generally be needed in order to have a reasonable chance to meet the performance requirements. Additionally, if a Special Agent is nearing a performance evaluation deadline, then he may have to work on a given afternoon, to have a chance at meeting the performance requirements. 1

Also, Plaintiffs work in Cochran’s office between 1973 and 1979 imposed actual time constraints — Cochran would penalize Plaintiff for not having a secretary for at least twenty hours per week. The work in Cochran’s office, and the additional performance requirements imposed by Cochran, beg the question of Plaintiffs relationship with NML, for the reasons stated under the second Darden factor, above.

In addition, the exclusivity provisions referenced above, in the first part of this opinion (contractual provisions limiting Plaintiffs ability to work for other companies), imposed controls on Plaintiffs working hours.

Finally, as the majority notes, Plaintiff was required to attend periodic meetings, which, of course, meant that Plaintiff did not have discretion to decline to work at the time of the meetings.

On balance, this factor favors “employee” status: NML did not control Plaintiffs working hours, but NML’s performance requirements established a high level of de facto control of hours, and NML required Plaintiff to attend meetings.

vii. The method of payment

The contract specifies “commissions” at specified rates, with thirty days advance notice of reduction in rates. Although the contract provides for Cochran to pay the commissions to Plaintiff, it also provides that NML sets the commission rates. Id. Cochran was paid directly by NML, making it likely that the money he paid Plaintiff came from NML. The fact that Plaintiff was paid in commission, not salary would suggest that Plaintiff was an “independent contractor” with respect to NML. Wolcott v. Nationwide Mut. Ins. Co., 884 F.2d 245, 251 (6th Cir.1989); Schwieger v. Farm Bureau Ins. Co., 207 F.3d 480, 486 (8th Cir.2000).

Yet there are countervailing considerations. It is noted that Plaintiff received travel reimbursements, which might be characteristic of an employee — though perhaps independent contractors also receive such advances. But this does not appear sufficiently telling to alter the rest of the analysis of this factor. Another consideration is the “Quality Incentive Compensation” system, which appears to create bonuses and incentives that are more characteristic of an employment relationship than a piece-meal independent contractor relationship. Also, a Special Agent’s renewal commissions did not fully vest until the agent worked for NML for fifteen years — this would promote a long- *535 term relationship that would appear to be more of an employment nature.

Hence, although the factor still favors NML, since Plaintiff was paid on commission, not salary, the other considerations appear to temper the conclusion.

viii.The hired party’s role in hiring and paying assistants

Plaintiff states, in an affidavit: “Between 1973 and 1976, Mr. Cochran hired and paid for my secretary.... Between 1976 and 1979, Mr. Cochran’s office manager hired my secretary and I was responsible for a portion of her salary.” (J.A. at 1210.) After 1979, Cochran would penalize Plaintiff for not having a secretary for at least twenty hours per week. Cochran’s paying for a secretary or requiring a secretary begs the question of Plaintiffs relationship with NML, for the reasons stated under the second Darden factor, directly above.

The majority states that Cochran’s requiring Plaintiff to hire a secretary “is insignificant, however, because it says nothing about whether Northwestern Mutual or Cochran played any role in hiring or paying Weary’s assistants; it only establishes 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 reason that he hired a secretary was his employer’s requirement that he do so.

Due to the ambiguities as to Cochran’s relationship with NML (as described in the second Darden factor), there is no clear conclusion, here.

ix.Whether the work is part of the regular business of the hiring party

The majority rightly concedes that Plaintiff was a part of the regular business of the hiring party.

x.Whether the hiring party is in business

As the majority correctly states, this factor is of limited relevance. (This factor is not cited as relevant in Simpson v. Ernst & Young, 100 F.3d at 443.)

xi.The provision of employee benefits

NML withheld Social Security and paid retirement benefits and health insurance. NML apparently set aside fund for Plaintiff that was termed the “Persistency Fee Guarantee Fund” and was governed by the Employee Retirement Income Security Act (“ERISA”). (J.A. at 862-68); (Plaintiffs Brief at 5). Also, NML offered a defined benefit plan, the Agent’s Retirement Plan, also governed by ERISA. This would all favor Plaintiff.

NML suggests that it was allowed to contribute group benefits to Plaintiff and to withhold Social Security taxes only because of Plaintiffs status as an “independent contractor.” NML cites two tax definitions of “employee” that include both common-law employees and insurance salespersons. 26 U.S.C. §§ 3121 (d)(3)(B), 7701(a)(20). There is no support for NML’s position here, in the sources cited; rather, the tax court case that NML cites indicates that Social Security taxes could be withheld for an ordinary, common-law employee. Ewens & Miller, Inc. v. Comm’r, 117 T.C. 263 , 2001 WL 1575671 (2001) (“For the purposes of employment taxes, the term ‘employee’ includes ‘any individual who, under the usual common law rules applicable in determining the employer-employee relationship, has the status of an employee’. Sec. 3121(d)(2); accord sec. 3306(i).”).

Nor do the tax consequences for NML appear to be relevant — the factor here is *536 simply the provision of benefits. Ordinarily, an independent contractor would not receive benefits from any one client. Ordinarily, a full-time employee would receive benefits from an employer. Plaintiff received benefits from NML, which suggests that Plaintiff was NML’s employee. NML points out that Plaintiff was not covered by a workers’ compensation plan, which might temper the conclusion here a bit — but this would not change the overall conclusion that NML offered benefits to Plaintiff.

xii. The tax treatment of the hired party

In the factor directly above, it is mentioned that NML withheld Social Security taxes, but that the statute allows a business to do this for an insurance salesperson who is not a common-law employee. Thus, the Social Security withholding does not appear to favor Plaintiff.

Plaintiffs tax returns were filed on a “Sole Proprietor” form, at times listing his “Business name” as “John F. Weary Insurance.” (J.A. at 619.) Never did Plaintiff list an “Employer ID number.” Plaintiff deducted business expenses, which would not have been allowed by a common-law employee. 26 U.S.C. § 62 (“The deductions allowed by this chapter (other than by part VII of this subchapter) which are attributable to a trade or business carried on by the taxpayer, if such trade or business does not consist of the performance of services by the taxpayer as an employee”) (emphasis added).

There appears to be additional evidence of Plaintiffs tax treatment as an independent contractor. This evidence does not appear to be needed, as the matter appears to be clear. Plaintiffs citing to the Social Security tax withholding appears to be rendered irrelevant by NML’s argument on that matter. Plaintiff appears to generally concede that his tax treatment was not one of an employee — arguing, correctly, that this factor is not dispositive in the case. 2 The factor is relevant, though.

Plaintiff was not treated as an employee of NML for tax purposes.

The Darden factors overall are ambiguous or else favor the conclusion that Plaintiff was an “employee” of NML. Two factors are unimportant (factor iii, the location of work, and factor x, whether the hiring party is in business). (Neither of these factors would clearly favor “independent contractor” status: factor iii is ambiguous, and factor x favors “employee” status.)

Four factors favor “employee” status. As the majority stated, factors iv (duration of relationship) and ix (part of regular business or company) favor Plaintiffs argument. Factor v favors Plaintiffs argument, because, NML’s performance requirements limited Plaintiffs discretion as to working hours, NML required Plaintiff to attend certain meetings, and Cochran required Plaintiff to hire a secretary for at least twenty hours per week. Also, factor xi favors “employee” status, since benefits were provided. Likewise, four factors favor NML’s position: factors i (the skill required), v (additional projects), vii (method of payment), and xii (tax treatment). Although one of the factors favoring “employee” status is slightly ambiguous (under factor v, NML only exercised de facto control of working hours), the same ambiguity exists for one of the factors favoring “independent contractor” status (under factor i, Plaintiffs general skills in selling *537 insurance were gleaned partly through training from Cochran).

The two remaining factors yield no immediate conclusions, due to Cochran’s unclear relationship with NML. See factors ii (source and instrumentalities), viii (role in hiring and paying assistants). However, in all reality, it is difficult not to view these factors as favoring “employee” status. The only basis for any relationship between Plaintiff and Cochran was through NML. NML expressly delegated authority to Cochran, including specific powers, such as the ability to set performance requirements above those set by NML — this power, of course, ultimately gave rise to this lawsuit (with Plaintiffs allegations that Cochran’s performance requirements were discriminatory). The personnel structure here — with a supervisor exercising control over a subordinate, sharing tools and instruments (factor ii), dictating work location (factor iii), and requiring that the subordinate hire a secretary for a minimum of twenty hours per week (factor viii) — indicates delegated control that is characteristic of corporate employment relationships. 3 To the considerable extent that Cochran controlled Plaintiff, through authority expressly delegated by NML, both Cochran and Plaintiff may have been employees of NML.

Thus, in conclusion to the analysis of the remaining Darden factors (aside from the two most important factors, analyzed in the first part of the opinion, above), the remaining factors that yield an immediate conclusion produce a split result, with four factors on each side. Two other significant factors appeared ambiguous, due to Cochran’s role; but, upon closer scrutiny, in light of the fact that Cochran’s control of Plaintiff 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 Plaintiffs 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 Lilley 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 Lil-ley 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 fac *538 tors unambiguously defeat Plaintiffs “employee” status.

For the aforementioned reasons, I respectfully dissent.

. Plaintiff never sets forth this precise reasoning in his brief. Thus, the majority claims that Plaintiff admits that, aside from meetings, 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 working hours.

. Plaintiff's Brief at 23 ("even though Weary was considered an independent contractor or sole proprietor for income tax purposes, that fact is not determinative of the employment relationship under the ADEA.”).

. A corporate employment relationship is also evinced by the Agents Manual of Information statement that "[a]s a Northwestern Mutual Life agent.... You are part of a company that has a reputation of being knowledgeable, caring. ...” (J.A. at 754) (emphasis added).