No$.14-1430$

Keller v$.$ Miri Microsystems

Page $8$

Even so$,$ there is a genuine dispute about whether Keller and Miri had a de facto exclusive relationship. See Keeton v$.$ Time Wamer Cable, Inc., No$.2$:$09-$CV$-1085,2011$ WL $2618926,$ at $*4($S$.$D$.$ Ohio July $1,2011)($workers$\text{'}$ "work schedules ensured they only completed Time Warner installations on any given day."$).$ Keller asserts that he did not have time to work for any other company. Technicians, like Keller, work only when a customer needs HughesNet to install or repair his or her satellite dish. When Miri has assignments in counties where multiple technicians work, Miri assigns the installation jobs based on the technician's availability and location. Where the customer lives, when the customer is available, and the amount of time needed to drive to the customer's house$-$these factors are outside of the technician's control and affect the technician's ability to perform more than three or four installations each day. Moreover, the whole installation process takes approximately two$-$and$-$a$-$half hours to complete, but may take longer if the customer requires that the technician mount the dish onto a pole. Repairs may take less or more time depending on the customer's needs. Even the most efficient technician could not finish four jobs in a day under eight hours, suggesting that technicians have slim control over their working hours and little ability to work for other companies. And the evidence is inconclusive whether technicians are able to engage in other economic ventures. Thus, there is a genuine dispute of material fact as to whether Keller and Miri had an exclusive, permanent relationship in practice.

$2.$ The Degree of Skill Required

The second factor we consider is Keller's skill. "Skills are not the monopoly of independent contractors." Laurizen, $835$ F$\mathrm{.}2$d at $1537.$ More important to our inquiry is whether Keller's profits increased because of the "initiative, judgment$[,]$ or foresight of the typical independent contractor," or whether his work "was more like piecework." Rutherford, $331$ U$.$S$.$ at $730.$

There is ample evidence in the record to support a finding that satellite$-$dish$-$installation technicians are skilled workers. Before technicians can begin working for Miri, they must obtain a HughesNet certification. Technicians also need basic computer skills, such as the ability to use Windows, Macintosh iOS, and WARP, Miri's scheduling software. In addition, technicians must be able to use basic hand and power tools, know National Electrical Code provisions, and