Court reminds that economic realities, not corporate formalities, govern independent contractor status

The distinction between independent contractors and employees continues to confound employers.

At issue in Acosta v. Jani-King of Oklahoma (10th Cir. 10/3/18) [pdf] is whether the Department of Labor could continue its FLSA claims on behalf of individuals who provide cleaning services as franchisees of a janitorial company. If the franchisees are independent contractors, then the FLSA does not coverthem. If, however, the company misclassified them as independent contractors, then the DOL has something to litigate.

WIRTW #526 (the “pumpkin” edition)

Pumpkin pie. Pumpkin spice. Pumpkin carving. Pumpkin festivals. Fall is officially the season of the pumpkin.

What are you doing Sunday, October 14? I'll be enjoying the return of Fake ID, as Norah and her bandmates take the stage from 11 – 1 at the Hiram House Camp Pumpkin Festival. They won't be hard to find on the property; just follow the music. Tickets are only $5 and are available here (kids under 12 are free).

Here's what I read this week:

Are you planning to take advantage of the IRS's employer tax credit for paid family and medical leave?

When Congress reformed the tax law earlier this year, one key change that might have flown under your radar is an employer tax credit for paid family and medical leave.

The IRS has a helpful Q&A available here.

EEOC sues Walmart for not hiring a congential amputee

The EEOC has sued Walmart on behalf of a woman who claims the retailer failed to hire her for a stocker job after it learned that she born without a right hand.

The Houston Chronicle has the details:

"I'm going to need every Saturday off; is that gonna be a problem?"

Darrell Patterson had worked in Walgreens' 24/7 call center for six years without incident. He claims Walgreens fired him for skipping an emergency training session held on a Saturday. He's a Seventh-day Adventist, and it's against his religion to work on the Sabbath (from sundown Friday through downs Saturday). Until his firing, they had worked cooperatively to schedule around this religious prohibitions, without incident.

Patterson's religion and Walgreens' scheduling came to a head in 2011, however, when Walgreens asked Patterson to cover an emergency Saturday training session. When he missed the training class, Walgreens fired him.

5 steps to take when an employee sues your company

I've written a lot over the years about best practices to prevent lawsuits by employees.

The fact remains, though, that no matter how good a company's HR practices are, and no matter how proactive a company is with its legal compliance, a certain percentage of terminations and other employment decisions will turn into lawsuits. It's the simple the cost of doing business.

WIRTW #525 (the “pogo” edition)

I have no idea if he managed to hit the right keys, but he's sure mastered the entertainment part of this rock 'n' roll thing.

View this post on Instagram

Donovan mastering the art of pogo keyboarding #sorcle

A post shared by Jon Hyman (@jonhyman) on Sep 23, 2018 at 4:47pm PDT

Here's what I read this week:

Don't Lindsey Graham your company's harassment investigations

What am I supposed to do, go ahead and ruin this guy's life based on an accusation? I'm just being honest. Unless there's something more, no, I'm not going to ruin Judge Kavanaugh's life over this. But she should come forward. She should have her say. She will be respectfully treated.

 – Senator Lindsey Graham

He-said/she-said cases of sexual harassment are difficult. You are making a decision that will impact the lives of two (or more) people often based solely on your evaluation of the credibility of the complaining employee, the accused, and witnesses (if any).

Cuyahoga County bans LGBTQ discrimination

Cuyahoga County, Ohio, my home county, has lately been on the receiving end of some bad press. Season 3 of Serial just landed on your podcast app of choice, and it does not portray my county's criminal justice system in the most positive of lights.

So, today, I thought I'd share something positive from Cuyahoga County.

Yesterday, the County Council passed legislation prohibiting LGBTQ discrimination in employment, as well as housing and public accommodations.

Don't ignore state law when considering wage-and-hour issues

In Integrity Staffing Solutions v. Busk, the U.S. Supreme Court held the employees of an Amazon fulfillment center were not entitled to be paid under the FLSA for time spent waiting in line for a post-shift security screening.

And yet, last week, in parallel litigation under Nevada state law, the 6th Circuit Court of Appeals just held that time spent undergoing mandatory security checks is compensable under Nevada law,  reversing a contrary lower court ruling.

The 16th nominee for the “worst employer of 2018” is … the sexist, racist, xenophobic, oh my!

"Jon, your first 15 nominees this year were so awful. How are we supposed to decide which is the worst, and please stop adding nominees. You're only making our job harder."

Well, dear readers, sorry. Sometimes, I pick the nominees, and sometimes they leap off the screen begging to be nominated.

WIRTW #524 (the “total disaster” edition)

Any week Rhett Miller releases new music into the world is a week worth celebrating. Earlier this week Rhett released "Total Disaster," the first song of his upcoming album, The Messenger, due out November 9.


It's a brilliantly sad song about the mess one can make of one's life and how it impacts those around you. In fact, the entire album promises to be a bit on the darker side. A few months ago, on Chris Shiflett's "Walking the Floor" podcast, Rhett talked about some of the album's themes:

[The album's title] comes from a bridge in a song called "Human Condition." There were some of these songs where I kind of went back to my 14-year-old self. When I was 14, I had a real serous suicide attempt, and that's when I started addressing my issues of depression and mental health. It's not something I've talked about until recently, but now that I've got kids around that age, I was like, "Oh shit, I've gotta talk about this, because it's become over-stigmatized." I started thinking abut the 14 year-old that was in that space, and I started thinking, "If I was to go back and write a letter to myself…" I wish I could go back to my 14-year-old self and be like, "Dude, chill out. It’s going to be ok."

As if this isn't news enough, one week later, on November 16, Old 97's will release their very first Christmas album, Love the Holidays—nine original holiday tunes plus a cover of "Auld Lang Syne."


You can read all about these projects at Old97s.com, and both albums are available for pre-order from ATO Records. 

Here's what I else I read this week:

What employment sins are you atoning for this year?

Yesterday was Yom Kippur, the Jewish Day of Atonement.

For the uninitiated, it is the day on which we make peace with God for all of the sins we've committed over the past year. On Rosh Hashanah God writes each person's name in Book of Life. Over the next 10 days, Jews seek forgiveness for wrongs done against God and our fellow humans. During Yom Kippur, each individual makes their personal petitions to God, and hopes for forgiveness for the upcoming year. If all goes well, when God closes the Book of Life at the end of Yom Kippur, your name remains and your soul is safe for another year.

I explain it to my Catholic children like this. Catholics (are supposed to) confess their sins each week. Jews save them up one shot on Yom Kippur. We've yet to try the chicken swinging; they're not ready for it. (I'm not sure I am, or ever will be, either).

There's a new sheriff in town at the NLRB

Last week was a big one at the National Labor Relations Board.

First, the Board announced its intent to modify its joint employer standard. This move, while not unexpected, is nevertheless significant. You can read all of the backstory on this issue here.

Sexual harassment allegations unjustifiably ruin people's lives only if they are false

Peoples lives are being shattered and destroyed by a mere allegation. Some are true and some are false. Some are old and some are new. There is no recovery for someone falsely accused - life and career are gone. Is there no such thing any longer as Due Process?

— Donald J. Trump (@realDonaldTrump) February 10, 2018

Yesterday, The Washington Post published Christine Blasey Ford's decades old allegations of sexual abuse she claims to have suffered at the hand of Judge Brett Kavanaugh, Supreme Court nominee. You can read the full letter here.

WIRTW #523 (the “radio radio” edition)

Earlier this week, I guested on AirTalk®, 89.3 KPCC in Los Angeles. I discussed the rights of employers to access information on employees' personal devices. It's an interesting and timely topic, in light of a lawsuit recently filed by an ex-managing director of an investment firm, accusing his former employer of hacking into his home computer to read his personal emails and obtain other stored data.

Where is the line between a personal device and a work device, and does the law make a distinction if the device is used for work?

Click here to listen to our discussion. And a huge thank you to Larry Mantle and his staff for having me on.

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In other news, if you find yourself in Cleveland's southwestern suburbs this Saturday at 2:30 pm or next Sunday at 3:30 pm, stop in at Slim & Chubby's, in Strongsville, to experience Norah and Donovan getting their School of Rock punk on. Green Day, Bad Religion, Rancid, The Interrupters, The Distillers, Frank Turner, and more Green Day.

Here's what I read this week:

Do you have employee-theft insurance?

The Philadelphia Insectarium and Butterfly Pavilion, a science museum showcasing one of the largest living arthropod collections in the United States, recently suffered a catastrophic loss. Crooks heisted over 80% of its collection — 7,000 of its rare insects, lizards, and snakes, valued at over $40,000.

According to The New York Times, police believe this to have been an inside job. Three current or former museum employees are the suspects. The evidence? Security-camera footage, plus staff uniforms hung from knives that had been stabbed into a wall.

The 15th nominee for the “worst employer of 2018” is … the tasering torturer

Was this a car dealership or the set of Hostel 4?

Jason Cox worked as a car salesperson for Marietta Motors. According to Cox's lawsuit, for the entirety of his 10 months of employment, the company's owner, Travis Westfall, engaged in a continuous and unrelenting campaign of verbal and physical abuse and harassment.

Cox claims that Westfall:

• Repeatedly demeaned him based on his large size, with names such as "Tiny," "Fat Ass," and "handicapped."
• On numerous occasions, pointed at Cox the red laser-sight of the handgun he kept at work.
• Placed the handgun to Cox's chest while telling him not to make any sudden moves.
• More than once held knives or other sharp objects to Cox's throat while demanding that he not make any sudden movements.
• Told Cox that he could "slit [his] throat and sleep just fine at night."
• Struck Cox with a soda bottle on his surgically repaired leg.
• Punched Cox repeatedly.
• Lit fires near Cox.
• Duck taped Cox's phone to his hand and head while he was talking.
• Repeatedly shocked Cox with a taser, to the point that his co-workers attempted to hide the weapon from Westfall.

Cox also claims that Westfall captured the abuse on video and shared it on social media. 

Ultimately, claims Cox, he quit and fled the workplace, but not before he claims to have suffered severe and permanent mental and physical injuries.

If even a portion of this stuff happened, not only will it qualify Marietta Motors and Travis Westfall for a well-deserved nomination for the Worst Employer of 2018, but it will also result in a very large and warranted payday for Jason Cox.

Everything you want to know about employee polygraph tests

Lie detector tests, have been all over the news lately. Reports suggest that Donald Trump wants to administer these examinations to the entire White House staff to identify the author of the anonymous New York Times op-ed.

There are no laws prohibiting the White House from using polygraphs in this manner. The federal law that regulates their use in the workplace—the Employee Polygraph Protection Act of 1988—does not apply to the government.

For private-sector employers, however, the EPPA imposes strict prohibitions on the use of any device to render a diagnostic opinion as to the honesty or dishonesty of an individual.

Do you really want to be the employer that bans your employees from wearing Nike products?

Last week, Nike launched its new ad campaign featuring (former) NFL quarterback Colin Kaepernick. He's most famous for being the first NFL player to kneel during the national anthem. As a result, he's become a lightning rod around our national conversation about race relations. He claims the NFL has blackballed him because of his outspokenness on the issue.