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When determining which individuals to include in an AAP, a contractor should include all of its employees who worked at that establishment during the AAP’s term (e.g., calendar year or fiscal year).  However, sometimes an individual working at the establishment may be an “independent contractor,” or other non–employee worker, who does not have an employment relationship to the contractor.  If a contractor is not sure whether an individual  working at the establishment is an  “employee,” it  should examine the  individual worker’s relationship to the contractor using  certain, specific factors  derived from a 1992 U.S. Supreme Court decision called Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318 (1992).  See Federal Contract Compliance Manual (FCCM), Key Words and Phrases, p. 298 (defining “employee”).

The application of the Darden factors is a fact–specific, case–by–case assessment, not a simple, bright–line test.  If a contractor believes that a worker may not be an employee, the contractor must assess and weigh each of the Darden factors with respect to its relationship with that individual. While no one factor will necessarily be decisive, the factors that indicate the extent to which the contractor controls the manner and means of the individual’s performance of his or her work will typically be most important in theDarden analysis.  See Equal Employment Opportunity Commission (EEOC) Compliance Manual, Section 2, Threshold Issues, Part 2–III, Covered Parties, available at http://www.eeoc.gov/policy/docs/threshold.html#2-III-A-1 (May 12, 2000).

See complete FAQ here: http://www.dol.gov/ofccp/regs/compliance/faqs/Employer-Employee_Relationship.html

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