An über-huge lawsuit for the employee/contractor distinction

Last week, two different California federal judges reached the same conclusion in two different lawsuits brought against two different ride-hailing companies, Uber and Lyft.

O’Connor v. Uber Technologies, Inc. and Cotter v. Lyft, Inc. are putative class actions alleging that the drivers of each company are employees, and not, as the companies claim, independent contractors. The distinction is monumental, since employees receive a wealth of legal protections, not the least of which is a guaranteed minimum wage and overtime for hours worked in a week over 40, while independent contractors serve with virtually no legal protections at all.

In each case, the judge concluded that the issue was too close to call on summary judgment, and punted the issue for a jury to decide. According to the judges, the drivers resemble contractors in some regards, such as their ability to choose their work hours and their passengers, and yet resemble employees in other regards, such as the degree of control the companies exercise over both the drivers’ interactions with customers and their tenure serving the company.

For more on the important issue of the employee/contractor distinction, and why you should err on the side of “employee” unless it is abundantly clear that the worker is an independent contractor, I recommend the following from the archives:

• Employee vs. independent contractor: do you know the difference
• Is this the end of the independent contractor as we know it?

BREAKING: NLRB Office of General Counsel issues report on employer rules

Today, the NLRB Office of General Counsel issued its report on employer handbook rules under section 7 of the NLRA. It’s a meaty 30-page report that will take some time to digest. I’ll have my thoughts and analysis early next week.

In the meantime, you can download the report here:  http://apps.nlrb.gov/link/document.aspx/09031d4581b37135.

OSHA and pro sports—are concussions the NFL’s black lung?

San Francisco line backer Chris Borland rocked the sports world yesterday by announcing his retirement from pro football at the age of 24 after playing only one NFL season. His reason: concerns about the long-term impact of football-related head trauma.

The news comes even as the NFL has implemented league-wide rules in an attempt to minimize head injuries. And, those rules seem to be working. During the 2014 season, the rate of concussion fell 25 percent as compared to the 2013 season, and are down 36 percent since 2012. Yet, NFL players still suffer 0.43 concussions per game. And, while the rate of concussions has fallen, the rate of injuries overall continues to rise, up 17 percent from 2013 to 2014, with 265 players placed on injured reserve during the 2014 regular season. This means that during the NFL’s regular season, more than one player per game suffered a season-ending injury.

Think about those numbers? If you ran a manufacturing plant, would you be content with a “Days Without Injury” calendar that was forever set on “zero?” And, more to the point, wouldn’t you expect OSHA eventually to take interest in your extraordinarily unsafe workplace?

All the way back in 2008, OSHA opined that it has the jurisdiction to regulate professional sports if the athletes are employees. There is no doubt that NFL players, protected by a labor union and parties to a collective bargaining agreement with the NFL, are employees, subject to OSHA’s regulatory jurisdiction.

OHSA lacks a standard on pro sports, but it does have its general duty clause. It provides, “Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” OSHA used this general duty clause to cite Sea World of Florida following  a trainer’s death from a killer-whale attack. If the general duty clause can reach the entertainment industry, why can’t it also reach professional sports?

While OSHA likely can reach pro sports, the bigger question is will it? On its own accord, history shows that the answer is no. But, what if the NFLPA believes that the NFL isn’t doing all it could to reduce the risk of head injuries and files a complaint with OSHA? What then? Or, what if, god forbid, a player dies on the field during a game? Surely, OSHA would then investigate. For years, the government and the coal industry ignored the risk of black lung disease, even as more and more miners fell ill. The NFL has the power to regulate head injuries. It better be sure it is doing everything it can, or it is taking a huge risk that OSHA will step in and regulate in the league’s place.

When loose lips sink defense ships

“So, what is is, your job or your daughter?” That one question cost an employer summary judgment in its employee’s associational disability discrimination case, in Manon v. 878 Education, LLC (S.D.N.Y. 3/4/15) [pdf].

The employee in question, a school receptionist, had attendance issues relative to her care for her infant with Reactive Airway Disease. During her 132 days of work, she arrived late 27 times, left early 54 times, and was absent another 17 times, batting .258—passable for a second baseman, but well below the employment Mendoza Line. Nevertheless, with the exception of one verbal tardiness warning, her personnel file was devoid of any documentation of attendance issues.

When Manon returned to work following a two-day absence to care for her daughter, who had been hospitalized with breathing issues, her supervisor told her that he was letting her go. The reason? “How can you guarantee me that two weeks from now your daughter is not going to be sick again? …So, what is it, your job or your daughter?”

Based on that statement, the court denied the employer’s motion for summary judgment, leaving the employer two options to resolve the case—a settlement or a risky jury trial.

It goes without saying that discrimination is wrong. Maybe the lesson here is that if you are ignorant enough to fire someone because of their caregiving needs at home, maybe it is asking too much to expect you to know enough not to express that intent out loud.

Why your control employees must care about employment laws

Last week I was asked if managers and supervisors have any liability for their own acts of discrimination or other unlawful activities. Like most things in the law, the answer is, “It depends” on the law about which you are concerned.

If it’s wage and hour advice, for example, then the Fair Labor Standards Act provides for individual liability for those who exercise significant control over the company’s operations. Some courts apply the same rationale to violations of the FMLA, although individual liability under that statute is far from a settled issue. The 3rd, 5th, and 8th Circuits have all found that there can be individual liability for FMLA violations, while the 6th (which covers Ohio) and 11th Circuits have gone the other way.

There are also potential common law claims under states law (e.g., intentional infliction of emotional distress) that, while hard to establish, create yet another avenue of individual liability. 

If it’s discrimination liability, there is no issue for the individuals under since Title VII and the other federal employment discrimination laws, none of which provide for any individual liability. 

Here is the part, however, to which Ohio employers must pay attention. Under Ohio’s employment discrimination statute, managers and supervisors can be held individually liable for their own acts of discrimination. So, an employee can not only sue your company, but also the individual who made the termination decision, the HR manager who dropped the harassment-investigation ball, or the supervisor who failed to engage the disabled employee in the interactive process. 

I’ve long argued that Ohio needs to change its employment discrimination statute to eliminate individual liability and bring our state law in line which its federal counterpart and the laws of nearly every other state. Yet, as long as this is the law of our state, these liabilities need to be central part of your company’s EEO and anti-harassment training, so that your managers and supervisors understand their own personal risk if they don’t understand their EEO obligations.

WIRTW #359 (the “think outside the box” edition)

Last night my family and I went out to dinner. The following is Donovan’s (age 6) solution of the kids’ menu word search.

His creative thinking should serve him well in life.

Here’s the rest of what I read this week:

Discrimination

• Jury awards $150K to employee who feared scanner as “Mark of the Beast” — via Walter Olson’s Overlawyered
• Tackle Bias in Your Company Without Making People Defensive — via Harvard Business Review
• Transgender employees and the so-called bathroom conundrum — via Eric Meyer’s The Employer Handbook Blog
• GCs: Does Your Company Have (or Need) a Non-Discrimination Policy? — via In House
• What do you do when your pregnant employee is too big? — via Mike Haberman’s Omega HR Solutions
• Is Paternity Leave for Lawyers an Oxymoron? — via Attorney at Work
• State of the Union” on substance abuse and the workplace — via Robin Shea’s Employment & Labor Insider
• What is a “hostile educational environment”? — via Phil Miles’s Lawffice Space

Social Media & Workplace Technology

• Learning From Hillary: Using Your Private Email for Black Ops at Your Company — via The HR Capitalist, Kris Dunn
• How Hackers Get Their Big Breaks: The Video — via Ride The Lightning
• What Would You Do If an Employee Tweeted Something THIS Detestable? — via Inc.com
• Should I post about work on my social media accounts? — via Genesis HR Solutions
• Sample Social Media Policy for Small Businesses — via Acacia HR Solutions
• Who Will Update My Status When I’m Dead?: The Biggest Social Media Platforms’ Policies on Deceased-User Accounts — via Socially Aware Blog
• Apple Watch and the Enterprise: Oh, God. This is Kinda Dumb. — via YourHRGuy

HR & Employee Relations

• 15 workplace behaviors that could get you fired — via Ragan.com
• Employer Can Be Found Liable For Misappropriating An Employee’s Trade Secrets — via Trading Secrets
• Non-Compete Agreements Are The New Black, Part 1 — via Texas Employment Law Blog
• Can Employers Prohibit Secret Workplace Recordings? — via HR Law Matters
• an employee made an anonymous complaint to OSHA — how can I stop it from happening again? — via Ask a Manager
• “You’re getting laid off! You’re getting laid off! Everybody’s getting laid off!” — via EntertainHR
• Employers, employees see work-life balance through different lenses — via HR Hero Line

Wage & Hour

• Wait! Stop! Is Your Severance Arrangement Subject to ERISA? and Should You Create an ERISA Severance Plan? — via The Emplawyerologist
• Can Your Company Require an Employee to Buy Health Insurance? — via TLNT
• Armored Car Drivers Who Drove Vehicles Weighing Less Than 10,000 LBS as Well as CMVs Non-Exempt and Entitled to Overtime — via Overtime Law Blog
• The Overtime Fight For Document Review Continues — via Above the Law
• Ineligible Employee Still Gets FMLA Leave Due To Incomplete Policy — via Minnesota Employment Law Report

Labor Relations

• The NLRB is Changing the HR Game in April — via Blogging4Jobs
• NLRB to Begin Training Staff on New Quickie Election Rules — via Labor Relations Today
• Avoiding Union Avoidance — via Workplace Prof Blog
• Good roundup of Right to Work — via Labor Relations Institute
• Teamsters and Technology : Developing Labor Issues for Technology Industry Employers — via Management Memo

When the government comes knocking, don’t forget not to retaliate

Last week, I wrote about what to do when OSHA comes knocking. One issue I did not address is the potential for retaliation against employees who provide information to, or otherwise cooperate with, the government.

Thankfully, the Department of Labor, on its own blog, recently provided a not-so-subtle reminder:

Employee cooperation and candor are crucial to these efforts. Just as important, employees who give testimony are protected … from retaliation or discrimination of any kind on account of their cooperation.

Whether it’s the EEOC, the DOL (Wage and Hour or OSHA), or the NLRB, employees not only have the right to file complaints or charges, but they also have the right to provide information to the investigating agency or otherwise cooperate in the investigation. For example, if OSHA is coming into your business, the inspector will almost certainly want to interview some of your employees. If they are non-management employees, you have no right to participate in or observe the interview.

It is critical that both before and after the investigation you communicate to your managers and supervisors that retaliation will not be tolerated. It’s also a good idea to communicate the same to your employees. Having, and documenting, this communication will be your best friend in the event that you have to take a legitimate adverse action against an employee on the heels of his or her participation in a government investigation.