Playing 20 questions with the employee versus contractor distinction

As reported by the Washington DC Employment Law Update, the Treasury Department and Department of Labor have been jointly charged to eliminate legal incentives for employers to misclassify employees as independent contractors, and investigate potential misclassifications. Misclassifications carry potentially severe penalties. For example, employees are subject to wage and hour laws, and must have payroll taxes paid on their behalf. Contractors, on the other hand, do not have to paid minimum wage or overtime, and can be 1099’ed.

How do you know if you are misclassifying employees as contractors? Consider these 20 questions, none of which are dispositive, but each of which is an important part of the calculus. The more yes answers you have, the more likely the worker is an employee.

1. Is the worker required to comply with others’ instructions about when, where, and how to perform the work?

2. Is training part of the work experience?

3. Are the worker’s services Integrated into the business operations?

4. Do the services have to be rendered by the specific worker charged with the task?

5. Does the person or entity for whom the services are performed hire, supervise, and pay assistants?

6. Is there a continuing relationship between the worker and the person or entity for whom the services are performed?

7. Is the work on a full-time basis?

8. Is a regular and consistent schedule required?

9. Is the work performed on the premises of the person or entity for whom the services are performed?

10. Does the worker have to perform services in the order or sequence set by the person or entity for whom the services are performed?

11. Is the worker required to submit regular or written reports to the person or entity for whom the services are performed?

12. Is the worker paid on a set schedule, whether by the hour, week, or month?

13. Does the person or entity for whom the services are performed ordinarily pay the worker’s business and/or traveling expenses?

14. Does the person or entity for whom the services are performed furnish tools, materials, and other equipment?

15. Does the worker rely upon the person or entity for whom the services are performed to provide facilities for the work?

16. Is the worker’s base compensation unrelated to his or her performance or the performance of the enterprise?

17. Does the worker only provide services to one person or entity at a time?

18. Does the worker refrain from making his or her services available to the general public on a regular and consistent basis?

19. Does the person or entity for whom the services are performed retain the right to discharge a worker?

20. Does the worker retain the right to end his or her relationship with the person or entity for whom the services are performed at any time without incurring liability?

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Who is Craig Becker and why should you care?

Craig Becker is President Obama’s nominee to the National Labor Relations Board. He is also the Associate General Counsel of the Service Employees International Union, the country’s fastest growing labor union. SEIU President Andy Stern is one of the most outspoken proponents of the Employee Free Choice Act.

Prior to being the SIEU’s in-house lawyer, Mr. Becker was a law professor at UCLA. During his academic life, he authored a 1993 article in the Minnesota Law Review, in which he argued:

• Traditional notions of democracy should not apply in union elections.

• Employers should be allowed to challenge union elections, even with evidence of union misconduct.

• Employers should be prohibited from placing observers at the polls to challenge ballots.

• Employer captive audience meetings should be grounds for overturning elections, and must grant unions equal access to company property.

It is unclear which of these ideas – including the EFCA for which the SEIU so strongly advocates – Mr. Becker things he could accomplish by administrative fiat as a member of the NLRB.

On February 9, Senate Republicans successfully filibustered Mr. Becker’s nomination, effectively blocking his appointment. In the words of Senate Republican Ben Nelson:

Mr. Becker’s previous statements strongly indicate that he would take an aggressive personal agenda to the NLRB and that he would pursue a personal agenda there, rather than that of the administration. This is of great concern, considering that the board’s main responsibility is to resolve labor disputes with an even and impartial hand.

Now word has come that President Obama may make Mr. Becker a recess appointment to fill the three-year-old vacancy on the NLRB. This news comes on the heals of Vice President Biden’s comments to the AFL-CIO that the administration will “get [the EFCA] done.”

All of these developments should be sobering to businesses. And, the fact remains that statistics show that labor unions don’t need the help. According to recent NLRB data [pdf], labor unions win-rates in secret ballot elections is at its highest level in decades, at 66%. If Mr. Becker is appointed to the NLRB, expect his number to increase dramatically.

What can you legally do to prepare for the wave of union organizing that is on the horizon? Consider that according to the AFL-CIO Union Handbook for Organizers, the following 6 factors are likely to lower the chance of a successful organizing campaign:

1. A belief by employees that the boss is not taking advantage of them.

2. Employees who have pride in their work.

3. Good performance records kept by the employer, which reinforces the recognition and appreciation of employees’ efforts and their feelings of job security.

4. No claims of high-handed treatment, but instead firm, fair, and warranted discipline.

5. No claims of favoritism, other than that is earned through work performance.

6. Supervisors who have good relationships with subordinates.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Avoiding shifting explanations avoids claim of pretext

Rep. Eric Massa resigned from Congress last week. Depending on the interview and the day, he either resigned: for health reasons, because of allegations he inappropriately touched a male aide, or because he, a Democrat, voted against the health care bill. Three very different reasons over the course of a week. Can we believe any of them, given these shifting explanations?

You may be wondering, what does Massa’s political downfall have to do with employment law? It serves as an excellent illustration of the dangers of shifting explanations in discrimination litigation.

For a plaintiff to succeed in a discrimination case, he or she must show that the employer’s stated reason for the challenged decisions was a pretext (i.e., a lie or a cover-up) for discrimination. One of the easiest ways for a plaintiff to establish pretext is to show that the employer’s explanation for the decision changed over time. Shifting reasons cast a cloud of doubt over the veracity of the explanation and the legitimacy of the decision. Once the fact-finder has reason to disbelieve the employer’s explanation, the case is sunk. As the United States Supreme Court stated in St. Mary's Honor Center v. Hicks, “the factfinder’s disbelief of the reasons put forward by defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may … show intentional discrimination.”

The takeaway – it is important to have your reason for the decision pinned down at the time the decision is made. Further, the reason must remain reasonably consistent for the lifespan of the case. You cannot offer the employee one reason, have another written in the personnel file, provide the EEOC another in the position statement, and have the decision maker tell yet another at deposition. At best, these shifting explanations will buy you a jury trial; at worst, they will result in a large jury verdict.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Hot off the press: 6th Circuit holds that discrimination laws apply to a teacher at a religious school

Certain employees of religious institutions are exempted from employment discrimination laws under what is known as the “ministerial exception.” It is an off-shoot of a religious institution’s constitutional right to be free from judicial interference in the selection ministerial employees. For this exception to bar an employment discrimination claim: (1) the employer must be a religious institution, and (2) the employee must be a ministerial employee. In EEOC v. Perich [pdf] (decided today), the 6th Circuit for the first time addressed the issue of the reach of this exception to a teacher at a religious school.

The court distinguished between an employee who primarily teaches secular subjects, and one who teaches primarily religious subjects or had a central role in the spiritual or pastoral mission of the church. The Court concluded that Perich –who only spent 30-45 minutes out of each 7-hour day on religious subjects – was not a ministerial employee. “The fact that Perich participated in and led some religious activities throughout the day does not make her primary function religious.” Thus, Perich was able to proceed with her ADA claim against her employer.

This case underscores that religious intuitions do not receive a free pass from discrimination laws. Instead, the application of these laws will depend on an individualized assessment of each employee’s job duties. Unless an employee’s primary function is “spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship,” that employee is entitled to the protections afforded by the discrimination laws.

If parochial schools believed they were exempt from anti-discrimination laws, they should be working with their employment attorneys to update their handbooks with EEO and harassment policies, and to train all of their employees as soon as possible on these issues.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Sniffing out the dangers of the new ADA

OnPoint News and Overlawyered report that the City of Detroit has settled a disability discrimination lawsuit brought by an employee with a perfume allergy. She had claimed that the city failed to reasonably accommodate her allergy after she complained that a co-worker’s perfume made it difficult for her to breathe. Per the settlement, the employee will receive $100,000, and the city will adopt a policy prohibiting employees from wearing scented products. Even though this lawsuit was brought prior to the ADA’s amendments took effect, it nevertheless serves as a good illustration of the breadth of the new ADA.

The ADA amendments are intended to make it much easier for individuals to demonstrate that they meet the definition of “disability.” To have a disability, an individual must be “substantially limited” in performing a “major life activity” as compared to most people in the general population. An impairment need not prevent, or even significantly or severely restrict, the individual’s performance of a major life activity The determination is supposed to be a common-sense assessment based on comparing the individual’s ability to perform a specific major life activity with that of most people in the general population. Major life activities include daily functions, as well as the operation of major bodily functions (which would include, for example, the respiratory system).

If an employee has a chemical sensitivity to certain smells, that allergy will likely substantially affect the employee’s respiratory system, thus rendering the employee “disabled” under the ADA.

The focus in ADA cases has shifted from the legal argument of whether an employee’s medical condition rises the level of an ADA-protected disability, to the factual issue of whether the employer reasonably accommodated that disability. Employers need to be very aware of this change in focus. Managers and supervisors should be trained in their obligations to engage in the interactive process with employees to determine what reasonable accommodations – if any – can be made to enable the employee to perform the essential functions of the job. Lots more employees will be able to claim the protections of the ADA for lots more medical issues. How managers and supervisors respond to requests for reasonable accommodations will dictate the strength of an employer’s position in ADA lawsuits going forward.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #117

One story I missed this week was the extension of the federal and Ohio COBRA subsidies. These bloggers, however, are picking up the slack:

• COBRA Subsidy Extended...Again...And Again? – from Pennsylvania Labor and Employment Blog

• Obama Signs Bill Temporarily Extending COBRA, Unemployment Benefits – from Washington D.C. Employment Law Update

• President Signs Bill Extending COBRA Subsidy For One Month; To be Applied Retroactively – from Dan Schwartz’s Connecticut Employment Law Blog

• COBRA Subsidy Extended To March 31, 2010 and Retroactive to February 28, 2010 – from Minnesota Labor & Employment Law Blog

• Ohio extends State Mini-COBRA Health Insurance Continuation Coverage From 12 to 15 Months – from Employer Law Report

Wage & Hour

• Wage and Hour Litigation: Can Class Actions And Collective Actions Coexist? – from Hunton Employment & Labor Law Perspectives™

• Plaintiff’s Bar Seeks To Circumvent Class Action Fairness Act In FLSA Collective Actions – from Wage & Hour - Development & Highlights

• Tip Pool May Include Employees Not Customarily Tipped If No Tip Credit is Taken – from Wage & Hour Defense Blog

• Employers Should Conduct Internal Wage & Hour Audit: 250 New DOL Investigators Graduating – from Debra Reilly’s Workplace Investigations Blog

• Let's Stop Shooting Ourselves in the Foot, Compliance-Wise – from Ann Bares’s Compensation Cafe

Labor

• Recess NLRB Appointment Coming? – from Mark Toth’s Manpower Employment Blawg

• Union’s Win First Concession from Obama – from The Ohio Labor Lawyers

• The NLRA...Not Just for Unionized Workplaces – from Southwest Florida HR Law & Solutions

Litigation

• An Employer Cannot Control a Manager’s Lawyer – from Tom Crane’s San Antonio Employment Law Blog

• Perception and Third Party Retaliation Claims Still Alive in DC District Court – from Michael Fox’s Jottings By An Employer’s Lawyer

• Austin Surveillance Camera Maker Says “Hey, You Ripped Us Off When We Weren't Looking” – from Trade Secrets Blog

• SCOTUS Guns Down “Employment Law Blockbuster” – from Philip Miles’s Lawffice Space

• “Please Sue Me” (Your Managers Talking?) – from HR Daily Advisor

• Is The Recession Making Jurors More Anti-Plaintiff? from California Labor and Employment Defense Blog–

• Negotiating with Difficult People: Taking Your Own Part in It – from Victoria Pynchon’s Settle It Now Negotiation Blog

Human Resources

• What is email really costing your company? – from Jennifer Hays at Warren & Hays Employment Law Blog

• Tie handbooks’ rules and policies to underlying company values – from Work Matters

• Recruiting with Social Networking Sites: What you DO know can hurt you – from Nick Fishman at employeescreenIQ Blog

• Sign of the Economic Times: Firing Workers for Getting Snowed In – from The Business of Management

• Reasons Some HR Departments Make Disastrous Decisions – from Michael Haberman’s HR Observations

• If You Don’t Ask for Feedback, How Do You Know How You’re Doing? – from Molly DiBianca at Delaware Employment Law Blog

• Tiger, The Man Gene and ADAAA – from The Word by John Phillips

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

It’s time to bring Ohio’s discrimination law in line with its federal counterparts

At Jottings By An Employer’s Lawyer, Michael Fox discusses pending legislation in Missouri that would bring that state’s employment discrimination laws into line with their federal counterparts. Ohio needs the same reforms.

There are at least four key areas in which Ohio law is out of line with its federal counterparts. This dissymmetry creates an uneven playing field, in which employees are encouraged to forum shop their claims.

1. Exhaustion of administrative remedies. Under Ohio law, a plaintiff can proceed directly to court without first filing any claims with the state or federal agencies. The federal statutes require that an employee file a charge with the EEOC before filing a complaint alleging discrimination in court.
   
2. Time periods for filing claims. Under Ohio law, an employee has 6 years to file all types of discrimination claims except age claims, for which they have 180 days to file. Under federal law, an employee has 300 days to file an agency charge, and an additional 90 days to file a lawsuit after final disposition by the agency.
   
3. Supervisor and manager individual liability. Under Ohio law, managers and supervisors can be held personally liable for their own acts of discrimination. This type of liability does not exist under federal law.
   
4. Damage caps. Damages for employment discrimination claims are uncapped under Ohio law. Under federal law, compensatory and punitive damages are capped based on the size of the employer, and max out at $300,000 for each.
   

These reforms are needed to: i) eliminate the confusion that exists between two different procedural schemes to remedy the same alleged conduct; ii) remedy the problems created by employees shopping their claims between state and federal forums; and iii) remove disincentives for businesses to choose Ohio as their place of operations.