Is Papageno an independent contractor?
My kids have recently fallen in love with Mozart’s classic fairy tale opera “The Magic Flute” (or Die Zauberflöte in its original German.) One of their favorite characters is Papageno, the unwillingly heroic bird catcher who joins Prince Tamino on his quest. When he is introduced to the audience, Papageno sings an aria that can be roughly translated as follows:
“The bird-catcher, that’s me,
always cheerful, hip hooray!
As a bird-catcher I’m known
to young and old throughout the land.
I know how to set about luring
and how to be good at piping.
That’s why I can be merry and cheerful,
for all the birds are surely mine.”
Shortly thereafter, Papageno meets Tamino and tells him that he makes his living by catching birds for the Queen of the Night and her ladies and trading the birds for food and drink. Later, when Papageno falsely claims that he saved Tamino by killing a serpent, the Queen of the Night’s ladies padlock his mouth shut to prevent him from lying.
Papageno boasts about the level of freedom he has as a carefree bird catcher. However, his exchange with the queen’s ladies also demonstrates to the audience both that the ladies can exert considerable control over Papageno and that Papageno can be less than truthful. This made me wonder: is Papageno an independent contractor or an employee under the Fair Labor Standards Act?
The Fair Labor Standards Act gives certain rights with respect to pay to employees. It does not, however, offer those same protections to independent contractors, who are considered to be in business for themselves as opposed to being statutory employees. As a matter of law, it is the actual facts and circumstances of a worker’s situation that dictates whether that worker is an employee or independent contractor, not any label used by the potential employee or the worker. When considering a claim under the FLSA, courts use a multi-factor test to see whether, as a matter of economic reality, the worker is dependent on the potential employer for their livelihood. The IRS also evaluates independent contractor claims and uses its own criteria, with the same general standards at issue.
As an initial point, Papageno most likely does not work within the United States of America and is not subject to the FLSA regardless of his employment status. Furthermore, Papageno appears to be quite content with his working situation and would be unlikely to bring a claim against the Queen of the Night even if he were working within the United States and believed himself to have been misclassified.
Assuming Papageno worked within the United States and wanted to determine whether, as a matter of law, he would be considered an employee or an independent contractor, let’s look at the factors that would be used by a court.
The Sixth Circuit Court of Appeals has adopted a six-factor test to determine whether someone is an employee or independent contractor. Those factors are:
- The permanency of the relationship between the parties;
- The degree of skill required for the rendering of the services;
- The worker’s investment in equipment or materials for the task;
- The worker’s opportunity for profit or loss, depending on his skill;
- The degree of the alleged employer’s right to control the manner in which the work is performed; and
- Whether the services rendered is an integral part of the alleged employer’s business.
As to the permanency of the relationship, the factor weighs in favor of Papageno being labeled as an employee rather than an independent contractor. Papageno tells Tamino that he catches birds for the Queen of the Night and her ladies. He does not mention trading or selling birds to any other entities. Employees usually work for one employer and the relationship is continuous and indefinite in nature, as opposed to independent contractors who transfer from place to place as particular work is offered to them. See Baker v. Flint Eng’g & Consr. Co., 137 F.3d 1446, 1442 (10th Cir. 1998). Since there is no evidence that Papageno ever performs his services for any other entities, we must assume that he at least has a somewhat exclusive working relationship with the Queen of the Night and her agents.
The next factor is the degree of skill required for the rendering of services. In his introductory aria, Papageno specifically mentions his skill at luring and piping. When it comes to this factor, it must be noted that skills do not necessarily indicate that someone is an independent contractor, as some of the most highly skilled workers such as medical doctors and engineers are often employees, but rather whether the worker can use their skill, initiative, judgment, or foresight to increase profits for themselves. Here, Papageno’s skills with luring and piping would most likely make him a more prolific bird catcher, resulting in greater profits to himself. This factor weighs in favor of a determination that Papageno is an independent contractor.
The third factor is the worker’s investment in equipment or materials for the task. The opera does not address this factor either way. Since we do not know whether Papageno is responsible for his own cages and traps, this factor will not be considered in this analysis.
The fourth factor is the worker’s opportunity for profit or loss depending on his skill. From the limited information given, we can assume that Papageno is responsible for determining where and when he will catch birds. In fact, when Tamino mentions that he is a prince from another land Papageno considers the possibility that journeying to that land could increase his own profit. This factor weighs in favor of a finding that Papageno is an independent contractor.
The fifth factor is the degree of the alleged employer’s right to control the manner in which the work is performed. Although Papageno initially implies that he has significant freedom, the Queen of the Night’s ladies later padlock his mouth shut, showing that they have the authority to discipline Papageno. It is possible that this punishment is unrelated to the work Papageno performs. Without more information, this factor likely leans in favor of a finding that Papageno is an independent contractor but more information would be needed to make a fair assessment.
The sixth factor is whether the services performed are an integral part of the alleged employer’s business. Once again, we are without sufficient information to make a determination, but the factor likely leans in favor of a finding that Papageno is an independent contractor. Why does the Queen of the Night want birds? Are they purely for her own enjoyment, apart from any specific goals (business or otherwise) that she may have? Are they somehow integral to the work she is performing, such as overthrowing Sarastro? Even if she uses the birds as equipment, the procurement of the birds themselves may not be integral to her business. If Papageno is merely a supplied, it is most likely that this factor weighs against a finding that he is an employee.
When looking at all the factors to determine whether a worker is an employee or an independent contractor, courts are directed to use the information as a guideline to make a general determination about the overall nature of the relationship, not apply any sort of balancing test. Applying the factors to Papageno’s situation, it is likely that a court would determine that Papageno is an independent contractor. However, more information revealed through discovery, particularly information that makes it seem like the Queen of the Night has considerable control over Papageno’s work, could lead a judge to find that a trial is necessary to truly determine Papageno’s work status.
If you believe you have been misclassified as an independent contractor, call Gold Star Law for help.