# SSR 82-3c: SSR 82-3c: SECTION 210(j)(2) (42 U.S.C. 410(j)(2)) -- EMPLOYER-EMPLOYEE RELATIONSHIP -- STATUS OF AIRLINE PILOTS

> Federal · Rulings · In force

URL: https://www.frixlaw.com/law-library/statutes/SSA_SSR_OASI_SSR_82_3c

## Section

- **Citation:** SSR 82-3c
- **Heading:** SSR 82-3c: SECTION 210(j)(2) (42 U.S.C. 410(j)(2)) -- EMPLOYER-EMPLOYEE RELATIONSHIP -- STATUS OF AIRLINE PILOTS
- **Jurisdiction:** Federal
- **Kind:** Rulings
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** Social Security Rulings / OASI / Definition of Employment/Employee / SSR 82-3c

## Text

20 CFR 404.1007

SSR 82-3c

Selman v. Califano, 1A Unempl. Ins. Rep. (CCH) ¶ 17,474 (10th Cir 1980),
619 F.2d 881

LOGAN, Circuit Judge:

Richard J. Selman, Jr., an airline pilot for Eastern Air Lines, contests
his classification as an employee for purposes of the Social Security
laws. The Social Security Administration (SSA) refused to rule that he was
an independent contractor. After exhausting administrative remedies,
Selman sought review in district court, which affirmed the SSA's
determination and denied Selman's motion requesting a remand for the
purpose of taking additional evidence.

Selman makes the following contentions in his appeal to this Court: (1)
the SSA's findings are not supported by substantial evidence; and (2) the
district court abused its discretion in denying the motion to remand for
additional evidence. In addition, he has asked that our decision on his
appeal be delayed until a new contract currently being negotiated between
the Air Line Pilots Association and Eastern Air Lines (Eastern), can be
submitted to this Court.

The applicable section of the Social Security Act, 42 U.S.C. § 410(j)
defines "employee" as anyone who has such a status under the "usual common
law rules," referring to the master-servant concepts developed under the
law of agency. A number of factors have been utilized in determining
whether a person is an "employee" rather than an independent contractor.
20 C.F.R. § 404.1004(c) states the main element of the test as employer
right to control and direct not only the result to be achieved by the
person, but also the means by which the result is achieved. The right to
discharge and whether the employer furnishes the tools and the place of
work are also important factors, indicative of an employer-employee
relationship. Id . Other factors noted in United States v.
Silk , 331 U.S. 704. [67 S.Ct. 1463, 91 L.Ed
r
right to control and direct not only the result to be achieved by the
person, but also the means by which the result is achieved. The right to
discharge and whether the employer furnishes the tools and the place of
work are also important factors, indicative of an employer-employee
relationship. Id . Other factors noted in United States v.
Silk , 331 U.S. 704. [67 S.Ct. 1463, 91 L.Ed. 1757] (1947), are the
opportunities for profit and loss, investment in facilities, permanency of
the relationship between employer and worker, the skill required in doing
the work and whether the service is an integral part of the employer's
business. Id . at 716. No one factor is controlling, however, and
the circumstances must be looked at in totality. Id . at 716,
719.

The evidence submitted at the administrative hearing is uncontroverted
and consists mainly of the contract between Eastern and the Air Line
Pilots Association. [1] The
administrative law judge made the following pertinent findings of fact:

These findings are supported by substantial evidence, as discussed below,
and are therefore conclusive. See 42 U.S.C. § 405(g). We also hold that
these findings show employee status as a matter of law.

It is difficult to understand why Selman seeks reclassification to
independent contractor status, which would push his social security taxes
up to 8.1% from the current 6.13% on the first $25,900 of annual earnings.
See I.R.C. §§ 1401, 3101. Nevertheless, he persists and attacks the
findings of the SSA; we therefore deal with his contentions.
dings show employee status as a matter of law.

It is difficult to understand why Selman seeks reclassification to
independent contractor status, which would push his social security taxes
up to 8.1% from the current 6.13% on the first $25,900 of annual earnings.
See I.R.C. §§ 1401, 3101. Nevertheless, he persists and attacks the
findings of the SSA; we therefore deal with his contentions.

First, Selman emphasizes that in flying an airplane he must exercise
independent judgment in many instances and otherwise the Federal Aviation
Administration (FAA), not Eastern, controls how he flies the plane. The
use of independent judgment, and the accompanying loss of some control by
the employer, is a characteristic of all professional services.
Professionals are not automatically excluded from employee status,
however, unless they are engaged in an independent business in which they
offer their services to the public. 20 C.F.R. § 404.1004(c)(2). Selman
does not fall into this category because he is prohibited by contract from
flying professionally for anyone but Eastern and the national guard or
military reserve.

Recognizing that special considerations are required in determining the
status of professional persons, courts have found an employee relationship
by virtue of the degree of control present in areas outside those in which
professional judgment must be exercised. See Cody v. Ribicoff , 289
F.2d 394 (8th Cir. 1961) (doctor found an employee); Flemming v.
Huycke , 284 F.2d 546 (9th Cir. 1960) (same). The evidence here shows
Eastern had the right to control most nonprofessional facets of the
employment relationship
loyee relationship
by virtue of the degree of control present in areas outside those in which
professional judgment must be exercised. See Cody v. Ribicoff , 289
F.2d 394 (8th Cir. 1961) (doctor found an employee); Flemming v.
Huycke , 284 F.2d 546 (9th Cir. 1960) (same). The evidence here shows
Eastern had the right to control most nonprofessional facets of the
employment relationship. The contract contains the following provisions:
Pilots cannot fly for others or engage in any business activities adverse
to Eastern's interests; the number of hours a pilot can fly per month is
limited; training and proficiency checks are required by Eastern and may
exceed those required by the FAA; Eastern sets up the flight schedules and
may require a pilot to take a flight when no pilot has bid for it; and
Eastern can discipline and discharge a pilot, subject only to certain
requirements of notice, hearing and appeal.

It is uncontroverted that the FAA extensively regulates how the pilot is
to fly the plane. Since both the airline and the pilot are subject to the
regulations, and therefore neither completely controls the means by which
the job is accomplished, this fact is at least neutral. There is evidence,
however, that Eastern retains the right to control the details of the
work, subject to the FAA regulations.

An Eastern pilot's base pay is computed per hours of flying time; this
amount is then varied according to the type of plane, the time of day, and
the number of miles flown. A minimum monthly pay is guaranteed.
Consequently, Selman's income is not directly affected by the
profitability of his or the airline's activities. He can, of course, make
more money by working more hours, but this is not "profit" in the sense
that independent professionals profit by establishing fees that exceed
their costs of providing services to clients or patients.
of miles flown. A minimum monthly pay is guaranteed.
Consequently, Selman's income is not directly affected by the
profitability of his or the airline's activities. He can, of course, make
more money by working more hours, but this is not "profit" in the sense
that independent professionals profit by establishing fees that exceed
their costs of providing services to clients or patients.

It is clear that Eastern furnishes the vast majority of the "tools"
required by an airline pilot, and has made the investment in the aircraft
and the terminal, booking and administrative facilities. Selman furnishes
his own uniform, a flight bag and a tool kit, which are minimal by
comparison. Although Selman has "invested" by obtaining training and a
pilot's license, this is also true of essentially all people who work in a
skilled occupation or profession, whether they serve as employees or
independent contractors. Eastern also furnishes the place of work, the
airplane; that it does not own, but leases, some airplanes and terminals
is irrelevant.

There is extensive evidence that the relationship between Eastern and the
pilots is contemplated as a permanent one. The contract provides for
longevity pay rates, vacations, seniority provisions, leaves of absence,
sick leave, promotions, life insurance and pension plans. These types of
benefits are inconsistent with the one-job relationship existing between
an employer and an independent contractor. That the pilots' contracts are
usually for two-year terms does not affect the intended permanency of the
relationship.

It is common sense that an airline pilot possesses a high degree of
technical skill, but that skill is standard among all pilots. We agree
with the administrative law judge that this factor is neutral.
tionship existing between
an employer and an independent contractor. That the pilots' contracts are
usually for two-year terms does not affect the intended permanency of the
relationship.

It is common sense that an airline pilot possesses a high degree of
technical skill, but that skill is standard among all pilots. We agree
with the administrative law judge that this factor is neutral.

The findings in favor of employee status, supported as they are by the
record, provide a sound and unassailable basis for the employee
classification. There can be no doubt that Selman would be considered the
servant of Eastern under the common law rules referred to in 42 U.S.C. §
410(j).

Selman filed a motion under 42 U.S.C. § 405(g) in the district court for
remand to consider the following additional information: a prospectus on
Eastern Air Lines Profit Sharing Plan; the 1977 to 1979 contract between
Eastern and the Air Line Pilots Association; the FAA flight information
and procedure manual; and a notification of a limited partnership
available to employees for the purpose of owning an airplane leased to
Eastern. The district court judge denied the motion because the evidence
was merely cumulative. We have examined the proffered evidence and agree
it is mostly cumulative and, to the extent it contains any new
information, would not affect the result. Therefore, we affirm the denial
as within the district court's discretion.
ble to employees for the purpose of owning an airplane leased to
Eastern. The district court judge denied the motion because the evidence
was merely cumulative. We have examined the proffered evidence and agree
it is mostly cumulative and, to the extent it contains any new
information, would not affect the result. Therefore, we affirm the denial
as within the district court's discretion.

Selman has filed a motion in this Court requesting we delay consideration
of his appeal until he can submit a copy of the new pilots' employment
contract currently being negotiated with Eastern. He argues that the
information this contract contains -- additional wage variables for a
pilot's ability to conserve fuel -- is significant concerning the factor
of whether he can profit from his own endeavors. This contract apparently
is not yet a part of the employment relationship; at least it was not at
the time of the motion. We must decide the appeal on the record made
below. We cannot consider new evidence proffered at this level, except to
determine whether the case should be remanded under 42 U.S.C. § 405(g).
The new contract, as represented to us, would not affect the result in
this case. The motion to delay our consideration is denied.

The judgment is AFFIRMED.

[1] This contract was in effect
from January 1975 through 1977. The 1977 to 1979 contract was not entered
into evidence at the administrative level, and the district court refused
to remand for reconsideration in light of the new contract. That this
specific contract is no longer in effect does not invalidate the evidence
for our purposes on review.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/SSA_SSR_OASI_SSR_82_3c. Check the current official text before relying on it. Not legal advice.