מיהו עובד: מבחני הסף

The distinction between an “employee” and an independent contractor has given rise to comprehensive discussions in case law and academic literature in Israel and around the world. Tests have been developed to assist in deciding who is included within the scope of “employee” and thus subject to labor laws, and a wealth of literature has examined these tests. Yet quite often, a close but separate issue arises: how to classify people who perform work, and clearly are not doing so as part of an independent business, yet for other reasons there is doubt concerning whether they are part of an employment relationship. This is the case for all of the following groups: volunteers, interns,apprentices, people with disabilities who work as part of a vocational rehabilitation program, prisoners, elected officials, partners, shareholders,directors and members of cooperatives. This is also the case when the engagement was forced upon one of the parties. In all of these cases, the worker may appear to be an employee according to the regular tests,designed to separate employees from independent contractors, but their status is determined based on other tests – “preconditions”, or threshold/preliminary tests. The case law does not offer clear tests regarding those preconditions. Moreover, to date there has been no attempt to articulate unified preconditions that can apply to all the groups mentioned above. The current article seeks to offer such tests and examine how they would apply for each of these groups.The argument advanced here is primarily descriptive, seeking to offer new insights based on reviewing and re-organizing the existing case law. At the same time, it also includes some normative arguments concerning the desired tests. The basic claim is that a careful reading of Israeli case law reveals three preconditions for employee status: work for the benefit of another, which should be remunerated, and is performed personally.These tests are justified in terms of their ability to advance the purpose of labor laws. However, with respect to the way in which these tests have been applied by the courts in practice, as well as some sub-tests that have been used, the article points out some contexts where changes are justified,in some cases suggesting new sub-tests.