morning may please the court cyrus duggar for plaintiff appellant either ag or bring this case is ultimately about economic role and economic dependence and economic reality test ask this court to answer a simple question whether as a matter of economic reality plaintiffs relied on m s a for the opportunity to render fit modeling services and the answer to that is clearly yes we think there are six uncontested facts that we believe the court can anchor its decision finding her to be a plaintiff going to be an employee as a matter of law those are that she had a three year non terminal contract during the three year term she could not work for any other modeling agency anywhere else in the world rd she could not work independently of a both because if its contractual restrictions and because of its threats to an actual interference with her attempts to do so forth she was subject to significant economic penalties if you turn down work offered to her by n s a if she tried to leave the agency violated any of m s s contractual requirements or policies these penalties included being made unavailable one piece if a client requested her being dropped by the agency but held to her three year non computer she couldn't work during that term minimum that's what should happen here and an absolute minimum defendant's positions we don't believe that they're actually supported by the record but if if they are supported by their record then they're at a minimum here at a number of disputed facts contract you say yes these are best efforts under the contract so she can't not she can't refuse work without eventually evolves you know tell me where in the contract expires civically provides that if she refuses work she faces a penalty it doesn't specifically state that your hon constantly unavailable or uncooperative they would be dropped the same testimony in which they drop so that that's exactly what she wants so it would seem to me if she just kept refusing work sooner or later she'd be free  agency minute director anthony higgins confirms that there are e mails that confirm one when models do not take work that's given and they can be made unavailable so that would mean as it as a penalty if you don't if you say no to work too many times you're at risk she had to work you see your honor it's it is true that like the employees in brock and in the gail nurse case every employee has the literal up the literal right to stick with my question who i understand you're the jury advocate for your client here but let's stick to the record a little bit here so she control who she worked for and she could literally decide to go to work or didn't she negotiate the wage that she got from  work why do i have to go a different agency i'd like to leave liz pinto sent her an e mail that said you can under your contract you cannot work with another modeling agency and you can not work independently that kept her from leaving until june when she tried to leave  jury will looking at the district court decision one of the main issues that the lower court got wrong is they relied entirely on a single sentence from liz pintos declaration that said plaintiff dictated her own schedule and it ignored all the evidence to the contrary regarding penalties the coronation of scheduling the requirement to hold her time the requirement to be available at all times for potential work in addition the lower court got wrong the issue i just discussed with your honor regarding the negotiation when did the negotiation happen and as we point out in our brief all of the sites to the combine rule fifty six statement it cites it not in the light most favorable to plaintiffs so there really when you when you when you tease out the fact that there isn't control over your ability to schedule your time if you if you are subject to penalties for saying no to work this illegal ivers didn't have to do with no penalty for not working at all is only a penalty for the saline drivers if they agreed to work and then recanted it here plaintiff has to be available she didn't take the jobs that risk of being dropped now what it means to be dropped is ok you're dropped we're not going to give you any more work but you're still not able to work for the money ok so you're stuck to this modeling contract for three years and as an example of this in the record  for katherine cooper brown that illustrates it well she she wasn't able to get a hold of the agency and the agency and she said to the agency i'm exclusive with you i can't i can't get in work any other way if you're dropped you can't you're not getting work m s a controls the faucet of work opportunities ok you can't work without them turning that on and i ask you about the confidentiality designations and where things  realities of the relationship that determines whether an individual is an independent contractor or an employee under the federal and state wage and so it's not simply if there is some clause that uses the word independent contractor that isn't itself sufficient that's correct your honor the courts below here the court below directly correctly decided on summary judgment they leave agood break a fit model was not an employee of her management company a primarily for five non exclusive reasons she worked on her own schedule she accepted and rejected work of her own choosing she negotiated rates she was not trained by emma say and she with respect to that and in fact miss agha brink decided to take for example the q b c job even though it was far below her normal customary ali rates that doesn't answer the concern raised by my colleague who and did not require her to accept any work did not require to accept any pay the decision was ultimately hers or an offer a negotiated offer on her own yes or no she of the relationship between m s and her relationship m s a his perspective was she allowed to do this she was allowed to do that and i say acted on her behalf to try to do the best for her as possible as she requested bring services to emma say as a go between m s a then distributed the portion of that that was mazatlan brink's and retained its portion for in services but i mean that that that suggests that they might have paid for her services but that's not to say that she was paid by them the money came from the apparel companies the money was invoiced by paperwork that ms ag delivered to the apparel company the apparel company representative filled out signed bring filled out and signed it was then turned over to in the normal situation she would be able to negotiate her regular rate which was approximately two thousand two hundred and fifty dollars an hour in the q v c situation q v c r for her a job in west chester pennsylvania over one hundred miles away from her home in new jersey and a rate far below her standard rate she did not have to accept it she ended up telling emma say please convey to q b c i will take that job at that rate provided you m s a reduce your fees to me and that was the arrangement she then had to invest in a nd all whether vehicle to drive one hundred miles in the winter each way and she invested in a nd apartment in westchester pennsylvania and these clearly show that she had control over what she wanted to do who she wanted to work for at a certain point time to be indicative of a no process the issue of who sets the rates really kind of becomes a real cornerstone issue here on the economic reality between these two because if you set up the rates then she's working for you you're honor in the same case in the  circuit the customers the business is that we take in saline the drivers were free to accept other contracts other other rights they were free to work independently they set their own hours the they even though they wore uniforms and they had a code of conduct they they they controlled their work and every in almost every other single aspect of it the question here is if you control the work essential you control the work  got in her control how much she was paid the fact that you may have that your contract required her to pay for her incidentals including a car or or lodging of things just a functional form point some employees pay their own way other employees get reimbursed for i recognize that it may be some an indication of independent contractors but doesn't really all turn ultimately on who controls or pay no your honor of it there are multiple factors in the economic realities test be concerned are you saying that if that if we were to find that there's if a jury were to find or a judge were to find th use at a rate of pay that is that she could still be an independent contractor we don't have that case in front of us you and ask you that i asked you to tell me what you thought if that were the case now you can either answer the question and we'll go on  decide the case without the benefit of your answer and destroyed thank you if the company were to have set the rates that would not be by itself determinative of the independent contractor employee issue because there were five hundred and sixty seven other fact is that had to be considered as part of the equation which were whether she performed  whether the fit modeling work was routine or required independent judgment exercise of certain advertisements no experience necessary ms agha brink had over twenty years of experience which she had i'm asking you what your dad say in terms of what of that model needed to do the job she might have been an exceptional one but the question is what was needed to do the job go ahead this was not a class action you're on and i just think it is it was go ahead the question of profit and loss she determined her profit and loss opportunity to go to raise well depending upon what the rate is it could be a profit or a loss in fact she decided after working for q b c for a year or so she decided it wasn't profitable enough for her and she decided not to do that job anymore and she but that's what the contract said ok that's true and how can you say that n s a didn't exert control over rabaa agric it never happened in the situation and that fee that it was would be of being for was in the nature of deferred compensation for past services rendered in helping to introduce ms agha bring back into the career and to advance her fit modeling opportunities all this suggests that there are still a number of questions that turn down work that you could be dropped and then still have that exclusively provision binding you and your ruined then so why doesn't that sling didn't have that celine they could work for anyone they want with no notice to the defendant here if you want to work for any apparel company you had to give notice and you face the specter if you turn down work of being dropped and being bound by the exclusively provisions in fact the record shows that she turned down  c job ultimately and she left and took a position with cache a company situation where m s a received no compensation whatsoever this was miss agha brings decision and that's what the facts are in this case the record not what could have and might have happened there hanging overhead which compromises are independents that she if the extension would want to turn down jobs maybe she didn't want instance but  relationship with your client it's important whether or not she knows she can turn down jobs with no repercussions and that doesn't quit beating and even in the in the fourteen months that she worked under the nd contract there were only two jobs that she obtained with carol hartman and with she we see the company tried its best to encourage her and show us how to get additional work and she was not able to  c rejected it because she and her accountant determined it was not profitable enough for her she went in house with cache to cash a job she was threatened that she was violating her agreement the threat was added in the course of a heated dispute was never followed through on and there were never any retaliation reprisals taken by the company that's clear in the record your honor that you we were to remand on matter we why do we have to make a determination now if we were to remand the case there are thousands and thousands of documents that are produced in discovery in this case that a part of this record for example mr dug other documents which we've been marked confidential your ana thank you or any rate with any client ever that's not supported in the record and even if there is some arguable support it would be a hotly contested fact in fact there's nothing that mr spell fogo brought up to your honor's in his statements it's not an absolute minimum hotly contested fact if there's any support for their position in the record one thing just that the district court confused when see it was at the same time she was attempting to leave the agency generally so those two things happened at the same time and that sort of obscured in the courts description of the facts so it was their departure from the agency that m s a was primarily responding to at that time the saline decision mentions the ability to to work for competitors eight times in its decision that fact that exercise of control of having a non compete is what is the lens through which this court should view most of the factors it affects if there is an investment whether there's a point to investing if you can bring it to a competitor with with you or if you can't bring it with you after you leave the company  the sixty six facts i was beginning the opening with were should a contract you couldn't terminate for three years she couldn't work for any other modeling agency and you in the world she couldn't work independently of the contract the threats beginning december all work she got back to n s a n s a had no contractual obligation to give that work back to her and the six point is that during the term during the fifteen months that we allege she was an employee she only worked for m s a with the exception of week and a half at a spa if the court finds those facts are not generally disputed by m s a they would be sufficient to find its use an employee as a matter of law importantly the district courts and alice's did not address any of those six facts i just described converse lee if the court finds that any of  vacated and there should be a trial