How long is too long for retaliation

Does an employee who complains that she is being discriminated against and is fired three months later have a case for retaliation? According to the Cuyahoga County Court of Appeals in Mendlovic v. Life Line Screening of Am., Ltd., the answer is no. In that case, Mendlovic claimed that she told the owner of the company that her supervisor was not "giv[ing] her a chance" because she is a woman. Two to three months later, she was fired. The court found that the gap between the complaint and her termination did not, as a matter of law, show a sufficient causal connection.

Often, employees feel emboldened after complaining about discrimination, as if granted some sort of immunity from termination. After all, no employer wants to buy a retaliation lawsuit, even if otherwise legitimate grounds exist for the termination. Now, at least in Cuyahoga County, that immunity has a duration. The taint of retaliation will wear off after two or three months, absent any other evidence of retaliation. Notwithstanding, any termination of an employee who has complained about retaliation should always be viewed as high risk, and should never be undertaken without serious deliberation, and in most cases the involvement of your employment lawyer.

The Blog is in trial

Posts will be sparse for the next week or two, as the Blog is in the middle of trial. I'll be keeping a look out for interesting items to post when I can grab a free moment or two.

Court confirms that independent contractors can be discriminated against

In a case affirming the longstanding rule that independent contractors are not covered by Ohio's employment discrimination laws, the Lucas County Court of Appeals highlights the pitfalls employers face in treating workers as independent contractors instead of employees.

Bill Perron served Atlas Roofings as a sales agent. Atlas set forth the terms of his relationship in a Sales Agent Agreement. Under the Agreement, Atlas provided Perron with a specific sales territory, which Atlas could adjust at its own discretion. Perron worked out of an office in his home, and was to use his best efforts to procure customers. Atlas, however, retained control over the products Perron could sell, as well as their pricing and other terms and conditions of sale. Also, Perron was prohibited from selling any competing products. Atlas paid him solely on commission, with no benefits of any kind, because, according to the Agreement, he was "engaged in [his] own independent business." Perron was to maintain his own insurance policies, and pay his own taxes, none of which would be withheld. Finally, to make sure that the terms of the relationship were perfectly clear, the Agreement specifically provided that Perron was an independent contractor.

When Perron turned 65, Atlas began to transition Perron's sales territory to another, presumably younger, representative. In fact, Perron's manager admitted as much in an intra-company e-mail:

As Bill approaches his 65th birthday (late June 2004) we thought of using 2004 as a "transition year" for Bill by starting to develop Bill's eventual replacement group.... Atlas's game plan for Bill Perron had always been for Bill to handle the commercial line for a couple of years, to get him past his 65th birthday.... Thus, the 2004 transition plan would ... keep Bill Perron compensated through November 1, 2004, keeping his Social Security in tack [sic] without fear of penalty for early retirement.

Unsatisfied with a forced retirement, Perron sued Atlas for age discrimination. Despite the smoking gun e-mail, the trial court dismissed the age discrimination claim because Perron was an independent contractor, and not an employee. In Perron v. Hood Indus., Inc. d/b/a Atlas Roofing Corp., the Lucas County Court of Appeals upheld the dismissal of the lawsuit and Perron's treatment as lawful.

While the civil rights laws clearly only cover employees, and not independent contractors, what is not always clear is what qualifies one as an employee as compared to an independent contractor. The Court cited to the well-worn "right of control" test to make its determination:

If the employer reserves the right to control the manner or means of doing the work, the relation created is that of master and servant, while if the manner or means of doing the work or job is left to one who is responsible to the employer only for the result, an independent contractor relationship is thereby created.... Factors to be considered in determining who has the right to control includes indicia such as who controls the details and quality of the work; who controls the hours worked; who selects the materials, tools, and personnel used; who selects the routes traveled; the length of employment; the type of business; the method of payment; any any pertinent agreements or contracts.

The Court agreed that Perron was an independent contractor, and not an employee. In reaching that conclusion, it relied heavily on the language of the Agreement, the fact that he worked out of his home, set his own hours, was paid solely in commissions, received no benefits, and paid his own taxes. The Court was not persuaded by Atlas's discretion and control over its products, pricing, and orders.

Companies might be tempted to use this case as a template for designating workers as contractors. This case, however, could have just as easily been decided in Perron's favor, and on another day it very well might have been. It points out the very real dangers companies face in trying to classify workers as independent contractors. Separate and apart from the serious tax implications of misclassifying an employee as a contractor, I would not want to be in front of a jury trying to justify Atlas's e-mail on a legal distinction between independent contractor and employee. Employers should consider all of the risks associated with classifying someone as an independent contractors, and should not make such a decision without first consulting with employment counsel.

Federal Judge blocks No-Match Rules

The San Francisco Chronicle is reporting that a U.S. District Court Judge Maxine Chesney has issued a nationwide Temporary Restraining Order blocking, at least until October 1, the Department of Homeland Security's recently enacted rules that require employers to terminate undocumented workers. I've previously detailed the new regulations, which specify the steps employers should take upon receipt of a no-match letter from the Social Security Administration. The judge has indicated that to save the regulations the government will have to present evidence showing a connection between a no-match letter and "a reasonable inference that the person is here illegally." The AFL-CIO, which brought the lawsuit, has argued that past experience with no-match letters shows that they are often sent mistakenly because of clerical errors and legal name changes. This issue is one in which employers might be served aligning themselves with labor unions. If the regulations are ultimately struck down, employers will receive a reprieve from the onerous task of re-verifying the employment status of innumerable employees.

Requiring a return-to-work medical certification of full duty or no restrictions violates the FMLA

Rather than reporting on Clark v. Gospel Light Publications, I'll merely direct everyone over to The FMLA Blog. The Clark case holds that a policy requiring that a return-to-work medical certification specify that the employee can work full duty or without restriction violates the FMLA. When you couple this opinion with Bryson v. Regis, in which an FMLA claim was allowed to continue even though the employee could not perform the essential functions of her job at the end of her leave, the FMLA is becoming more and more difficult for employers to administer. Companies face an awful Hobson's choice. You violate the FMLA if you require a doctor's note attesting to the employee's ability to return without restrictions, and also violate the FMLA if you refuse to accept a doctor's note requesting light duty. The FMLA was never intended to create job rights beyond 12 weeks, and yet these two recent decisions seem to do exactly that, much to the likely chagrin of HR departments everywhere.

Happy Labor Day

It might be a little late into the holiday, but I'd be remiss as an employment law blogger if I did not wish everyone a happy Labor Day. No fresh content today (check back tomorrow), but in honor of the holiday of the working person I'm linking to my favorite post from the first three months of the blog -- Lessons from Childrens' Lit.

Is the 40-hour work week relevant?

Yesterday's Cleveland Plain Dealer had an interesting article (available here) on the state of the American work week. Surprisingly, the average person worked 1.7 hours less per week in 2006 as compared to 1956 (39.2 hours versus 40.9 hours). It notes, however, that these statistics can be misleading, since they lump blue collar and white collar workers together. In reality, the white collar workforce is expected to work longer and harder, often putting in 50 and 60 hour weeks. Blue collar workers, on the other hand, only average 34 hours per week. Moreover, despite the shorter average work week, we still work more hours per year in this country than any other Western industrialized country except South Korea. In light of these statistics, is the 40 hour work week as relevant as it was in 1938 when the Fair Labor Standards Act was enacted to curb exploitation, boost job creation, bring the country out of the Great Depression? An argument can be made that regulated overtime is no longer needed, as companies would voluntarily pay overtime to non-exempt employees as a recruiting and retention tool to get and keep the best workers. Regardless, out of the fear of exploitation and a perception of entitlement, the FLSA and its overtime provisions are not going anywhere anytime soon.