Question

Employee or Independent Contractor? On February 1, 2004, CBS presented a live broadcast of the National Football League’s Super Bowl XXXVIII. Nearly 90 million viewers watched the halftime show during which Janet Jackson and Justin Timberlake had an alleged “wardrobe malfunction.” Janet Jackson was the announced headliner, and Justin Timberlake was a “surprise guest” for the final minutes of the show. He and Jackson performed his popular song “Rock Your Body” as the show’s finale. Following the broadcast, the Federal Communications Commission fined the network $550,000 because it contended the performance violated broadcast decency standards. The FCC objected to sexually suggestive choreography, which portrayed Timberlake seeking to dance with Jackson, and Jackson alternating between accepting and rejecting his advances. The performance ended with Timberlake singing, “Gonna have you naked by the end of this song,” and simultaneously tearing away part of Jackson’s bustier. CBS had implemented a five-second audio delay to guard against the possibility of indecent language being transmitted on air, but it did not employ similar precautionary technology for video images. As a result, Jackson’s bare right breast was exposed on camera for nine-sixteenths of one second. CBS issued a public statement of apology for the incident. CBS stated Jackson and Timberlake’s wardrobe stunt was unscripted and unauthorized, claiming it had no advance notice of any plan by the performers to deviate from the script. CBS appealed the fine to the federal court of appeals on many grounds. Among them was its contention that it was not liable for their actions because they were independent contractors and not network employees. What factors should the court consider to determine if these two stars were CBS employees for the event or independent contractors? (CBS Corporation, et. al. v. F.C.C. 535 F.3d 167 (3rd Cir. 2008))

Answer 1

The court should consider the below factors to determine whether the two stars were CBC employees or independent contractors.

1. Whether an employer - epmployee contract existed between CBC and the two stars

2. Examine the nature of contract to ascertain if the contract was only for performing on the specific show and was paid only for the performance.

3. Whether CBC had any control over the performance of the stars irrespective of the fact that it had control over what to air live.