Date of this Version
In deciding whether a state law partner is an "employee" under Title VII or the ADEA, the test proposed by this Comment is as follows: (1) Did the partnership agreement create an "expulsion power" in favor of the partnership? If so, a rebuttable presumption exists that the partner is an "employee." (2) Assuming the partner cannot be expelled without cause, is this an "expendable partner?" Could the partnership afford to pay the partner the value of his partnership interest if he decides to leave? If so, a rebuttable presumption arises that the partner is an employee.
This test has several advantages over courts' current application of the UPA. First, the proposed test of employee status directly links the substance, not simply the form, of the UPA rules to the federal purpose behind the Acts. Second, by focusing on the UPA's practical impact on instances of discriminatory conduct that Congress intended the Acts to prohibit; hiring, discharge, and the terms and conditions of employment; the proposed test is consistent with the philosophy that "economic realities" should govern the scope of the Acts. Third, the proposed test provides predictability and promotes judicial efficiency because it is a straightforward inquiry grounded on easily obtainable documents, (the partnership agreement and the financial records of the partnership), rather than intangible factors such as a partner's "degree of control" or vague concepts such as the partner's "employment security."
Partnerships are a growing and powerful segment of our national economy. Favored as an organizational form by many of the professions, they also represent the door to success for those individuals with proper credentials. While these individuals climbed the academic ladder, federal courts cloaked them in equal educational opportunity. While they worked at menial tasks to pay for their education, federal courts sheltered them against employment discrimination. Even up to the moment an employee (associate) knocks on the partnership door, federal courts ensure that the partners inside listen to that knock with an unbiased ear. The time has come for federal courts to accompany those individuals needful of protection inside the partnership door, rather than abandoning them on the partnership doorstep.