As indicated in your materials, many view the common-law approach to determining employment as problematic. For one thing, the resulting tests are highly fact intensive and therefore often create uncertainties that impose real costs on both workers and firms. In addition, some argue that the common-law approach is not always an appropriate way to determine whether an employment protection applies. Consider, for example, Lerohl v. Friends of Minnesota Sinfonia, 322 F.3d 486 (8th Cir. 2003), in which the court held that two female musicians were independent contractors of the symphony for which they had performed regularly and therefore were unable to claim sex and disability discrimination under Title VII and the ADA (even if they had, in fact, been discriminated against based on their sex or disability status). The court recognized that the symphony's conductor exercised significant control over the production of music in rehearsals and concerts. Yet because the musicians were highly skilled professionals, required no on-the-job training, retained the discretion to play for others, could reject playing in particular performances, and were not treated as employees for tax and benefit purposes, the court found that they were not employees. Are there alternatives to the common-law control test you