A hospital terminated a physician's hospital privileges, and she thought she had a Title VII case. But she was not an employee of the hospital. Levitin v. Northwest Community Hosp (7th Cir 05/08/2019) [PDF].
The court applied a five-factor test: (1) the extent of the employer’s control and supervision over the worker, including directions on scheduling and performance of work; (2) the kind of occupation and nature of skill required, including whether skills are obtained in the workplace; (3) responsibility for the costs of operation, such as equipment, supplies, fees, licenses, workplace, and maintenance of operations; (4) method and form of payment and benefits; and (5) length of job commitment and/or expectations.
But let's face it. Control is the main factor. The court summarized that this way:
Levitin owned her own medical practice, billed her patients directly, and filed taxes as a self-employed physician. Northwest did not provide Levitin with employment benefits or pay her professional licensing dues. Moreover, Levitin’s work agreement with Northwest confirms her independence. She could set her own hours, subject only to operating-room availability; she could obtain practice privileges at other hospitals and redirect her patients to those locations; and she could use her own staff in surgeries. Most importantly, she made the treatment decisions for her patients.
The physician had a theory that the hospitals' peer-review committee (which recommended terminating her privileges) was exerting the kind of control that made her an employee. But the peer-review committee was reviewing her work after-the-fact. That's not the kind of control that turns her into an employee.