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1 Found helpful • 10 Pages • Essays / Projects • Year: Pre-2021
nternal Memo Date: 6 May 2012 To: Bernadette (the Principal Lawyer) From: Xi Yu Re: Big Bang accountant Sheldon The Facts SheldonworksinITforBigBangAccountants as an e‐solutions developer. She worksonthehelpdeskmostof thetime, but she also helps todevelopanewprogram in some occasion,butnot often. She usually works inthreetofourdaysaweek. BigBangAccountants providesallthe working equipment for her, and pay herthroughher ABN. She ownsacoupleofpatentsfor online shopping programs. BigBangAccountantshasclaimedtheyownedher programs after they knew someof thebigaccountingfirmswantedto buyone of her program Issue Whether she can keep her personal intellectual property? Short Answer She is probably entitled to her patents of online-shopping program, and BigBangAccountants would not have a good case to claim the ownership of the programs. Analysis Sheldon works in BigBangAccountants (BBA) regularly, butthere is no employment agreement between Sheldon and BigBangAccountants (BBA), so the first issue will be whether she is an employee in BBA. At common law, judges consider the ‘multiple indicia test’ in determining whether a worker is an 1 employee or an independent contractor. 1 Some factors outlined in this this test need to be considered. Degree of control exercised over the worker The degree of control is a significant element of the test.2 An employee is subject to the will control of the employer not only as to what work has to be done but also as to how the work must be accomplished.3 Here, Sheldon is clearly subject to the directions of BBA, as BBA right to assign different work to her and she does not has a high level of control in how the is done. Tools and equipment The employer generally provides tools and equipment, or a tool allowance for their employee.4BBA provides alltheequipment for Sheldon, and she does not need to purchase those on her own.
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