Ernster v. Luxco, Inc. , 596 F.3d 1000 ( 2010 )

MURPHY, Circuit Judge,

concurring.

While I concur in Chief Judge Loken’s opinion and his thorough discussion of our circuit law in this area, I write separately only to encourage the appropriate use of a jury in resolving factual disputes that frequently accompany the application of the Darden standard. Although the ultimate issue of employee status is one of law, resolving the issue on summary judgment is only appropriate “provided there is no genuine issue of material fact.” Lerohl v. Friends of Minn. Sinfonia, 322 F.3d 486, 488 (8th Cir.2003) (emphasis in original). As we have recognized, the determination of whether a party is an employee or an independent contractor is “extraordinarily fact intensive,” Alford v. United States, 116 F.3d 334, 337 (8th Cir.1997), and requires consideration of “all aspects of the working relationship between the parties,” Hunt v. State of Mo., Dept. of Corrections, 297 F.3d 735, 741 (8th Cir.2002). Thus, the nature of the Darden standard is such that it may frequently involve fact issues which are ideal for submission to a jury as was done by the district court in this case.