(a) The definition in section 3(r) specifically provides that the
``enterprise'' shall not include ``the related activities performed for
such enterprise by an independent contractor.'' This exclusion will
apply where the related activities are performed ``for'' the enterprise
and if such activities are performed by ``an independent contractor.''
This provision is discussed generally in part 776 of this chapter.
(b) The Senate Report in referring to this exception states as
follows:
It does not include the related activities performed for such an
enterprise by an independent contractor, such as an independent
accounting firm or sign service or advertising company, * * * (S. Rept.
No. 145, 87th Cong., 1st Sess., p. 40).
The term ``independent contractor'' as used in section 3(r) has
reference to an independent business which performs services for other
businesses as an established part of its own business activities. The
term ``independent contractor'' as used in 3(r) thus has reference to an
independent business which is a separate ``enterprise,'' and which deals
in the ordinary course of its own business operations, at arms length,
with the enterprises for which it performs services.
(c) There are many instances in industry where one business performs
activities for separate businesses without becoming a part of a larger
enterprise. In addition to the examples cited in the Report they may
include such services as repairs, window cleaning, transportation,
warehousing, collection services, and many others. The essential test in
each case will be whether such services are performed ``for'' the
enterprise by an independent, separate enterprise, or whether the
related activities are performed for a common purpose through unified
operation or common control. In the latter case the activities will be
considered performed ``by'' the enterprise, rather than ``for'' the
enterprise, and will be a part of the enterprise. The distinction in the
ordinary case will be readily apparent from the facts. In those cases
where questions arise a determination must be made on the basis of all
the facts in the light of the statute and the legislative history.
