John Weary v. William S. Cochran

*The Honorable R ichard M ills, United States District Judge for the
Central District of Illinois, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0251P (6th Cir.)
File Name: 04a0251p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
JOHN WEARY,
Plaintiff-Appellant,
v.
WILLIAM S. COCHRAN, et al.,
Defendants-Appellees.
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No. 03-5143
Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 00-01121—Thomas A. Wiseman, Jr., District Judge.
Argued: March 9, 2004
Decided and Filed: July 29, 2004
Before: MARTIN and CLAY, Circuit Judges; MILLS,
District Judge.*
_________________
COUNSEL
ARGUED: Angus Gillis III, SCHULMAN, LEROY &
BENNETT, Nashville, Tennessee, for Appellant. Winston N.
2 Weary v. Cochran, et al. No. 03-5143
Harless, LEWIS, KING, KRIEG & WALDROP, Nashville,
Tennessee, Robert E. Boston, WALLER, LANSDEN,
DORTCH & DAVIS, Nashville, Tennessee, for Appellees.
ON BRIEF: Angus Gillis III, Ashley N. Arnold,
SCHULMAN, LEROY & BENNETT, Nashville, Tennessee,
for Appellant. Winston N. Harless, John Roy Tarpley,
LEWIS, KING, KRIEG & WALDROP, Nashville,
Tennessee, Robert E. Boston, Stanley E. Graham, WALLER,
LANSDEN, DORTCH & DAVIS, Nashville, Tennessee, for
Appellees.
MARTIN, J., delivered the opinion of the court, in which
MILLS, D. J., joined. CLAY, J. (pp. 12-29), delivered a
separate dissenting opinion.
_________________
OPINION
_________________
BOYCE F. MARTIN, JR., Circuit Judge. John Weary
appeals the district court’s dismissal of his complaint alleging
claims under the Age Discrimination in Employment Act, 29
U.S.C. § 621 et seq., and under Tennessee state law against
Northwestern Mutual Life Insurance Company and William
S. Cochran. For the reasons that follow, we AFFIRM.
I.
Northwestern Mutual Life Insurance Company markets its
products through “General Agents,” who in turn contract with
“Special Agents.” Northwestern Mutual hired William S.
Cochran as its General Agent and granted him the exclusive
contractual right to market Northwestern Mutual products in
Tennessee. Cochran’s insurance agency was located in
Nashville and, as of January 2000, had nearly one hundred
Special Agents under contract. Weary served as one of those
Special Agents from 1973 until 2000.

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No. 03-5143 Weary v. Cochran, et al. 3
The contract governing Weary’s business relationship with
Cochran, called the “Full-Time Special or Soliciting Agent’s
Contract,” provided that the “Agent [Weary] shall be an
independent contractor and nothing herein shall be construed
to make Agent an employee of the Company [Northwestern
Mutual], General Agent [Cochran], or First Party [Cochran].”
Weary was paid solely upon a commission basis, and agreed
to meet certain minimum selling standards set by
Northwestern Mutual and Cochran. Cochran set higher
standards than Northwestern Mutual, as he was permitted to
do, and when Weary failed to meet his minimum earnings
standards in 1998 and 1999, Cochran fired him. At the time
of his termination, Weary was over forty years of age. Weary
filed a claim with the Equal Employment Opportunity
Commission, asserting that he was impermissibly terminated
because of his age. The Commission found, however, that no
employer-employee relationship had existed. Thus, the
Commission closed its file and issued a right to sue letter.
Weary then filed the instant complaint against
Northwestern Mutual and Cochran, asserting claims under the
Age Discrimination in Employment Act, as well as state law
claims for breach of contract, breach of the duty of good faith
and fair dealing, fraud in the inducement to contract and
negligent or intentional misrepresentation. The district court
awarded summary judgment in favor of Northwestern Mutual
and Cochran on the federal age discrimination claims, holding
that neither qualified as Weary’s “employer” within the
meaning of the Act. Having dismissed the federal claims, the
district court also dismissed the state law claims for lack of
jurisdiction.
II.
The sole issue in this appeal is whether Weary was an
“employee” of Northwestern Mutual or Cochran within the
meaning of the Act. In analyzing the district court’s
resolution of this issue, we employ de novo review, using the
same standard under Federal Rule of Civil Procedure 56(c)
4 Weary v. Cochran, et al. No. 03-5143
used by the district court. Shah v. Deaconess Hosp., 355 F.3d
496, 498 (6th Cir. 2004). Summary judgment is appropriate
“if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.”
FED. R. CIV. P. 56(c). In viewing the evidence, we must draw
all reasonable inferences in favor of Weary, as the nonmoving
party. Shah, 355 F.3d at 49.
Like other federal employment discrimination statutes, the
Age Discrimination in Employment Act protects employees,
but not independent contractors. Shah, 355 F.3d at 499;
Simpson v. Ernst & Young, 100 F.3d 436, 438 (6th Cir. 1996).
The determination of whether a plaintiff qualifies as an
employee under the Act “is a mixed question of law and fact”
that a judge normally can make as a matter of law. Lilley v.
BTM Corp., 958 F.2d 746, 750 n.1 (6th Cir. 1992). As a
general matter, this Court has repeatedly held that insurance
agents are independent contractors, rather than employees, in
a variety of contexts. See, e.g., Ware v. United States, 67
F.3d 574 (6th Cir. 1995) (insurance agent was an independent
contractor for tax purposes); Wolcott v. Nationwide Mut. Ins.
Co., 884 F.2d 245 (6th Cir. 1989) (insurance agent was an
independent contractor under ERISA); Plazzo v. Nationwide
Mut. Ins. Co., No. 88-4016, 1989 WL 154816 (6th Cir. Dec.
22, 1989) (unpublished opinion) (same). Other courts are in
accord with this view. See, e.g., Butts v. Comm’r of Internal
Revenue, 49 F.3d 713 (11th Cir. 1995) (insurance agents were
independent contractors for tax purposes); Oestman v. Nat’l
Farmers Union Ins., 958 F.2d 303 (10th Cir. 1992) (insurance
agent was an independent contractor under the Age
Discrimination in Employment Act).
We have recently clarified that the proper test to apply in
determining whether a hired party is an employee or an
independent contractor under the Act is the “common law
agency test” set forth in Nationwide Mutual Insurance
Company v. Darden, 503 U.S. 318, 322 (1992). See Shah,

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No. 03-5143 Weary v. Cochran, et al. 5
1The parties agree that the factor relating to whether the hiring party
is in business is irrelevant and unhelpful to this analysis, as almost any
hiring party is in business.
355 F.3d at 499. In Darden, the Supreme Court described the
common law agency test as follows:
In determining whether a hired party is an employee
under the general common law of agency, we consider
the hiring party’s right to control the manner and means
by which the product is accomplished. Among the other
factors relevant to this inquiry are the skill required; the
source of the instrumentalities and tools; the location of
the work; the duration of the relationship between the
parties; whether the hiring party has the right to assign
additional projects to the hired party; the extent of the
hired party’s discretion over when and how long to work;
the method of payment; the hired party’s role in hiring
and paying assistants; whether the work is part of the
regular business of the hiring party; whether the hiring
party is in business; the provision of employee benefits;
and the tax treatment of the hired party.
Darden, 503 U.S. at 323-34; see also Shah, 355 F.3d at 499-
500; Simpson, 100 F.3d at 443. “Since the common-law test
contains no shorthand formula or magic phrase that can be
applied to find the answer, . . . all of the incidents of the
relationship must be assessed and weighed with no one factor
being decisive.” Darden, 503 U.S. at 324. Of the applicable
Darden factors,1 the vast majority weigh in favor of
characterizing Weary as an independent contractor, rather
than an employee.
The crux of Darden’s common law agency test is “the
hiring party’s right to control the manner and means by which
the product is accomplished.” 503 U.S. at 323. This is a
broad consideration that is embodied in many of the specific
factors articulated in Darden. Our analysis of those factors –
6 Weary v. Cochran, et al. No. 03-5143
which is set forth below – reflects upon, and is relevant to,
this core issue of control. Before turning to those specific
factors, however, we consider in a more general manner the
extent to which Northwest Mutual or Cochran had the right to
control the manner and means by which Weary marketed and
sold life insurance policies.
We begin by noting two pieces of evidence that shed light
on how the parties themselves viewed the nature of their
working relationship. First, the Special Agent Contract
characterized Weary as an “independent contractor” and
explicitly cautioned that “nothing herein shall be construed to
make [him] an employee” of Northwestern Mutual or
Cochran. This evidence, while not dispositive of the issue, is
certainly relevant to the inquiry. See, e.g., Eyerman v. Mary
Kay Cosmetics, Inc., 967 F.2d 213, 218 (6th Cir. 1992)
(emphasizing that a cosmetic salesperson’s employment
agreement “unambiguously declared [her] to be an
independent contractor”); Wolcott v. Nationwide Mut. Ins.
Co., 884 F.2d 245, (6th Cir. 1989) (noting the significance of
the employment agreement’s characterization of the plaintiff
insurance agent as “an independent contractor and not an
employee”); Daughtrey v. Honeywell, Inc., 3 F.3d 1488, 1492
(11th Cir. 1993) (the fact that the consultant agreement stated
that the plaintiff was hired as an independent contractor was
“probative of the parties’ intent” regarding the nature of the
employment relationship).
Second, Weary admitted in his deposition that he intended
to be an independent contractor:
Q. So by contract, you agreed that you were an
independent contractor and not an employee of Mr.
Cochran or Northwestern Mutual, correct?
A. According to this document and what I was led to
believe, the answer is yes, but the law says if one
party has control over the other party, then it doesn’t
make any different what the parties to the contract

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No. 03-5143 Weary v. Cochran, et al. 7
call themselves, you have an employer/employee
relationship.
Q. What I get confused about that, Mr. Weary, is going
back to your initial comments . . . in essence, you
intended that to be true, correct?
A. That’s correct. But I –
Q. You have intended to be an independent contractor,
didn’t you?
A. I did. But the law changed the contract.
(Emphasis added).
In addition to this evidence concerning the parties’ intent,
the record is replete with other evidence – much of which
Weary himself has admitted – indicating that Weary was an
independent contractor who, for the most part, had the right
to control – and did, in fact control – the manner and means
by which he accomplished his own work. For example, and
as discussed in greater detail below in connection with the
more specific Darden factors, Weary was paid solely on a
commission basis; he was free to take other jobs – and, in
fact, sold insurance policies for approximately fourteen other
insurance companies; he set his own hours and could take
vacation at his leisure; he employed his own staff and paid
them out of his own pocket; he decided whom to solicit for
business; he paid for his own office space, equipment,
supplies, car and travel expenses; and he kept his own
financial records and monitored his own profit and loss. This
is just a sampling of the abundant evidence in the record
pointing toward independent contractor status.
We recognize, as the dissent points out, that Weary’s
independence was not entirely unrestrained. He was required,
for instance, to comply with applicable legal and ethical rules
and certain administrative guidelines set out in a Northwest
8 Weary v. Cochran, et al. No. 03-5143
Mutual manual. That limited authority that Northwest Mutual
retained over these aspects of Weary’s work, however, is “not
the type of control that establishes an employer/employee
relationship.” Oestman, 958 F.2d at 306 (finding plaintiff to
be an independent contractor despite being required to obtain
permission from the defendant before advertising any of
defendant’s products). See also Ware, 67 F.3d at 576
(holding that an insurance salesman was an independent
contractor despite being required to comply with various
guidelines set by the insurance company); Kirby v. Robby Len
Swimfashions, 904 F.2d 36, at **3 (6th Cir. 1990) (Table)
(“While [defendant] required orders and paper work to be
administered on [its] forms and in conjunction with [its]
practices, the infringement of [plaintiff’s] discretion in the
affairs of his business by these requirements was minimal”).
Northwestern Mutual’s authority over those aspects of
Weary’s operations is understandable, see Oestman, 958 F.3d
at 306 (reasoning that defendants “have a substantial interest
in controlling the advertising of their products because [they]
may be liable for [the plaintiff’s] misstatements or
misrepresentations”), and does not undermine our conclusion
that, in general, Weary controlled the manner and means by
which he performed his job.
The more specific factors articulated in Darden also favor
characterizing Weary as an independent contractor. The first
factor relates to the skill required to perform the job in
question. In Schwieger v. Farm Bureau Insurance Co., 207
F.3d 480, 485 (8th Cir. 2000), the court found that this factor
“weigh[ed] heavily in favor of independent contractor status”
where the insurance agent “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.” In this case,
Weary admitted that the sale of insurance is a “highly
specialized field,” requiring considerable “training,”
“education” and “skill.” He also admitted that a state license
was required in order to sell insurance and that he had taken
licensure examinations in “several” states. Weary held a

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No. 03-5143 Weary v. Cochran, et al. 9
specialized “Series VI” license for the sale of securities, a
Chartered Life Underwriter certification and a business
administration degree. Thus, this factor weighs in favor of
independent contractor status.
Second, the source of instrumentalities and tools used in
Weary’s business was Weary himself, not Northwest Mutual
or Cochran. Weary admits that he paid for and procured his
own office equipment, internet and phone service, postage,
copies and automobile. He also paid for meals with
prospective clients and for his attendance at professional
training courses.
Third, with respect to the location of Weary’s work, he
admits that he worked either at his home office or at
commercial office space that he rented at his own expense.
He did not work at offices owned or controlled by
Northwestern Mutual or Cochran. Therefore, this factor
weighs in favor of independent contractor status. See
Wolcott, 884 F.2d at 251 (relying upon the fact that an
insurance agent owned and maintained his own office
condominium in finding him to be an independent
contractor).
Fourth, Weary admits that neither Northwestern Mutual nor
Cochran had any authority or discretion regarding when or
how long he worked, except to require him to attend periodic
compliance meetings and sales meetings and to meet
minimum selling standards. Weary was free to take vacation
at his leisure and did not report his hours to anyone.
Fifth, the fact that Weary was paid solely upon a
commission basis and did not earn a salary lends further
support to the conclusion that he was an independent
contractor. See, e.g., Ware, 67 F.3d at 578; Wolcott, 884 F.2d
at 251.
Sixth, with regard to the hiring and paying of assistants,
Weary admits that he employed his own staff at his own
10 Weary v. Cochran, et al. No. 03-5143
expense, had sole discretion in hiring, firing and
compensation matters, and withheld and remitted taxes to the
federal government in his capacity as the employer of his staff
members. Weary points out that his affidavit states that
Cochran required him to hire and maintain a secretary for
twenty hours per week and if he did not, he would suffer a
reduction in his expense allowance. That fact is insignificant,
however, because it says nothing about whether Northwestern
Mutual or Cochran played any role in hiring or paying
Weary’s assistants. The affidavit only alleges that Cochran
required Weary to hire and pay a secretary to work at least
twenty hours per week.
The seventh and eighth factors relate to the provision of
benefits and tax treatment. Weary places particular emphasis
on the fact that Northwestern Mutual provided him certain
pension and health benefits and that it withheld social security
taxes from his commissions. As the district court held,
however, the Internal Revenue Code permitted Northwestern
Mutual to provide those benefits and to withhold those taxes
because of Weary’s status as a non-employee. See, e.g., 26
U.S.C. § 3121(d) (permitting a “full time life insurance
salesman” who is not a common law employee to be deemed
an employee “for purposes of this chapter” – i.e., Chapter 21,
Federal Insurance Contributions Act); 26 U.S.C. § 7701 (a)(2)
(permitting a “full time life insurance salesman who is
considered an employee for the purpose of Chapter 21 to be
deemed a statutory “employee” who is entitled to participate
in group pension and benefit plans). The district court found
that Weary “admitted to being informed of his ‘statutory
employee’ status.” The district court found it even “[m]ore
instructive” that Weary deducted his profits and losses on his
own tax returns as a sole proprietor and declared on loan
documents that he was self-employed. We agree with the
district court that these factors also sway the balance in favor
of independent contractor status.
While at least two factors weigh in favor of characterizing
Weary as an employee – i.e., the duration of the relationship

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No. 03-5143 Weary v. Cochran, et al. 11
2W hether the hiring party may assign additional responsibilities may
also arguably weigh in W eary’s favor, although it is not entirely clear that
this factor is applicable under the facts o f this case.
and the fact that Weary’s work was a regular part of the hiring
party’s business2 – those factors do not offset the
overwhelming evidence that compels the opposite conclusion.
In sum, we hold that Weary was an independent contractor,
not an employee, and was, accordingly, not entitled to
protection under the Age Discrimination in Employment Act.
His claim under the Act having been properly dismissed for
this reason, the district court was entitled, as Weary admits,
to dismiss the remaining state law claims as well.
For these reasons, the district court’s judgment is
AFFIRMED.
12 Weary v. Cochran, et al. No. 03-5143
______________
DISSENT
______________
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 (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 (quoting Cmty. for
Creative Non-Violence v. Reid, 490 U.S. 730, 751-52 (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 short time of
one another, creating some confusion as to the standard for
determining “employee” status.

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No. 03-5143 Weary v. Cochran, et al. 13
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
Lilley, 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 436, 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.
14 Weary v. Cochran, et al. No. 03-5143
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 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.”).

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No. 03-5143 Weary v. Cochran, et al. 15
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
Plaintiff’s performance. Plaintiff’s 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 Plaintiff’s records:
Plaintiff received a letter from Diane Ertel, a Specialist in the
Market Conduct Division of NML, critiquing Plaintiff’s file-
keeping and advising him of procedures that he was expected
to make.
Beyond record-keeping regulations, NML exercised its
ability to influence Plaintiff’s 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 “Fastrack Agents’ Self-Study Guide” provided
detailed rules regarding the use of e-mail and the internet.
For example, NML stated, “Illustrations may not be sent via
16 Weary v. Cochran, et al. No. 03-5143
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 business. 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. . . . .

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No. 03-5143 Weary v. Cochran, et al. 17
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 Plaintiff’s 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. Plaintiff’s 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
18 Weary v. Cochran, et al. No. 03-5143
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 Plaintiff’s outside work opportunities.
Moreover, there is no clear indication that Plaintiff’s 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 Plaintiff’s relationship
with NML, it is obvious that if any of the other relationships
were of an employment nature, then so too was Plaintiff’s
relationship with NML. As a result, there is no way in which
Plaintiff’s work for other companies can be cited as
illustrating NML’s lacking the ability to control Plaintiff’s
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.

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No. 03-5143 Weary v. Cochran, et al. 19
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.,
2002 U.S. App. LEXIS 27369, at *3 (3rd Cir. Dec. 11, 2002)
(“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 Plaintiff’s
20 Weary v. Cochran, et al. No. 03-5143
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,
Plaintiff’s 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 Plaintiff’s 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
supplies 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
Plaintiff’s 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
instrumentalities 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.

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No. 03-5143 Weary v. Cochran, et al. 21
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 weekly 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
Plaintiff’s 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.
T i m e s , A u g . 1 7 , 1 9 9 7 , a v a i l a b l e a t
http://commtechlab.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.
22 Weary v. Cochran, et al. No. 03-5143
1Plaintiff never sets forth this precise reasoning in his brief. Thus,
the majority claims that P laintiff 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
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. Although 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

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No. 03-5143 Weary v. Cochran, et al. 23
working ho urs.
Also, Plaintiff’s 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 Plaintiff’s 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
Plaintiff’s ability to work for other companies), imposed
controls on Plaintiff’s 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 Plaintiff’s 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).
24 Weary v. Cochran, et al. No. 03-5143
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-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 Plaintiff’s 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

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No. 03-5143 Weary v. Cochran, et al. 25
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); (Plaintiff’s 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 Plaintiff’s 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) (“For
26 Weary v. Cochran, et al. No. 03-5143
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 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.
Plaintiff’s 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 Plaintiff’s tax
treatment as an independent contractor. This evidence does

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No. 03-5143 Weary v. Cochran, et al. 27
2Plaintiff’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 employm ent relationship under the
ADE A.”).
not appear to be needed, as the matter appears to be clear.
Plaintiff’s 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 Plaintiff’s argument.
Factor v favors Plaintiff’s argument, because, NML’s
performance requirements limited Plaintiff’s 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
28 Weary v. Cochran, et al. No. 03-5143
3A corporate employment relationship is also evinced by the Agents
Manual of Information statement that “[a]s a N orthwestern M utual Life
agent . . . . You are part of a company that has a reputation o f being
knowledgeable, caring . . . .” (J.A. at 754) (emphasis added).
“independent contractor” status (under factor i, Plaintiff’s
general skills in selling 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
Plaintiff’s 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

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No. 03-5143 Weary v. Cochran, et al. 29
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 Plaintiff’s 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 Lilly 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 Lilley
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 factors unambiguously defeat Plaintiff’s
“employee” status.
For the aforementioned reasons, I respectfully dissent.

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