Employee or independent contractor? This has always been a heavily litigated area in employment law and for good reason. Employers have legitimate reasons for categorizing people as independent contractors, especially for short term/temporary assignments and to assess the viability of potential new headcount. Less legitimate instances might encompass an attempt to avoid healthcare and tax cost implications of having the people listed as employees. Controversies over employment status are common when dealing with workers' compensation and unemployment compensation claims, where a person alleges to be an employee in order to receive some sort of financial or medical treatment benefit. These cases can be challenging, especially if a number of the factors favor employee status despite the assertions of the employer.
While these issues are old news, what is adding complexity to it is technology. Technology companies and apps have emerged which blur the lines between independent contractor and employee. Uber, a ride-sharing application where people contract with Uber to offer their "taxi driver-like" services to people. The consumer pays Uber and Uber, in turn, pays the contractor. The problem is that these technology companies have not adhered to taxi driver laws, which impact the tax revenue (not to mention losses from their lack of state uninsurance and workers' compensation policies) and statutory integrity of the taxi business, not to mention making taxi drivers disgruntled about the lost revenue. Most, recently, Virginia has joined other states in halting Uber business within its borders for these reasons. It also bears mentioning that in some areas, whether or not a cab driver is an employee or independent contractor is still a hotly contested issue.
While an Oklahoma court recently declared that an Uber driver was not an employee in dismissing a suit alleging this, I am sure these suits will continue as people try to get compensation for wrongs committed by Uber drivers (such as this one where an Uber driver kidnapped an intoxicated woman he picked up to transport, allegedly with the intent to sexually assault her). After all, lawsuits tend to go after the deep pockets, and Uber could pay damages a lot easier than Joe Driver. If these drivers were seen as agent/employees of the company, Uber would certainly be liable. However, as independent contractors (or as some would posit, they are neither employee or contractor but merely users of the platform), the liability of the company is more uncertain. Similar concerns are surfacing with companies such as the house-sharing business - and rising thorn in the side of the hotel industry - Airbnb, which has been dealing with its own legal nightmares relative to a New York subpoena request for its rental records. I not-so-boldly predict that this new technology will be a hotbed of employment law litigation for years to come.
Utah, New Mexico, Louisiana and Arkansas have joined Michigan, Maryland, Illinois, Washington, Vermont, Oregon, New Jersey and California in banning employers from requiring employees and job applicants to provide access to their social media sites. While this is a positive first step for employees and job applicants, will the current laws truly deter employers determined to access these employee sites?
Consider the remedy for a violation of one of these laws:
While this is a step in the right direction, a crime without an ample punishment is a crime waiting to happen. And this crime in particular is a senseless one. After all, rarely should an employer need access to an employee's social media account(s). If the intent of these laws is to prevent employer abuse, such as the request for access when there is no pending disciplinary action against the employee or no reason to suspect there is something problematic posted on the social media sites, the punishment needs to be more severe to deter abuse.
However, if a problem has surfaced, these laws typically will not punish an employer when an employee voluntarily provides such data. Also, the laws shouldn't punish an employer for engaging in a justified investigation into employee misconduct. This is especially true when it is suspected that the employee/applicant has been engaged in questionable activity which would bring disrepute to the employer.
If an employer really wants to find out what is within someone's social media profiles, there are creative ways to access the information beyond being confrontational with an employee or applicant and demanding s/he provide password access. For example, not only do some people leave their profiles open to the public, but also there are co-workers who are linked to the employees/applicants in question who are likely willing to provide the employer a peek into a particular persons account(s). Demands to employees for direct access, save for a legitimate reason as articulated above, generally should be saved for the discovery process when/if litigation ensues.
For more information about current state activity in this area, check out this site.
In a recent Wall Street Journal story, a City University of New York study found that men with children had a higher median income than all other categories in New York City. Men, this Father's Day you should spend a little bit of that extra loot celebrating the women and children in your life who made your added wealth possible! Sadly though perhaps unsurprisingly, women with children were taxed instead of receiving a bonus for having children. The study found mothers earning 27% les than fathers. We still have much work to do...
Over on the SCHOLARSHIP tab, I have posted my recent collaborative article about employer implications of conducting background checks in the Post-911 environment. The abstract is as follows:
Against the backdrop of the September 11, 2001 attacks, conventional wisdom suggests that employers would be willing to disclose information about prospective employees that may be deleterious to a new, hiring employer. Furthermore, one would also expect the converse to be true: employers will be able to ascertain employee reference data so as to hire the most qualified candidates who pose no significant risks to the new employer. The opposite has been the case in both instances. Former employers are increasingly paranoid about giving job reference information to inquiring, prospective employers about former employees for fear of lawsuits by those employees who allege that negative employer references resulted in their failure to be hired with a new company; and, new employers are consequently unable to ascertain valuable information needed to hire qualified and productive employees. This analysis examines the arguments on both sides and suggests steps to deal with the present conundrum.
In what might be the largest fast food worker protest yet (several have been staged over the past couple of years, which I have blogged about here and here), it is estimated that 2,000 organizers, fast food workers, and clergy members will be protesting outside of McDonald's headquarters in Oak Brook Illinois today and tomorrow (139 were arrested today, some wearing their McDonald's uniform). Tomorrow will be especially interesting as it is the date for the annual shareholders meeting.
The protest continues the ongoing rally of fast food workers nationwide seeking to increase their wage to at least $15/hour. They are also seeking the right to unionize without fear of retaliation. Given the decline in unionization, correlating with the decline of manufacturing, fast food workers present a good target market for union organizers. With NLRA anti-retaliation protection available for unionizing workers, it seems that forming a union will be a much easier task than getting McDonald's and similar large fast food chains to raise the minimum wage to $15/hour.
If we believe the New York Times and publisher Arthur Sulzberger Jr., Jill Abramson was fired for behavioral and performance issues - allegedly causing her direct reports to complain about and lose faith in her. While they claim managing editor Dean Baquet was vocal in his displeasure with Abramson due to her offering a job comparable to his to a priority recruit without his knowledge, it seems odd that this would be egregious enough to lead to her termination. Besides, when do subordinates get to dictate who is hired and at what rank/title (although it seems to have worked out well for Baquet given he was promoted to replace Abramson)?
Another curious point is the report that a mere week before she was fired, CEO Mark Thompson sent Abramson an email praising her work. Could it be that she was fired for advocating for a pay increase after finding out that she was paid less than her predecessor Bill Keller, as well as paid less than other peers at various points during her career with the Times? It seems evident that Sulzberger became frustrated at the fact that Abramson hired an attorney to assist her with pursuing pay equity. And while he disputes the assertion that she was paid substantially less than Keller and others, if a lawsuit occurs we will certainly learn the truth regarding her pay in comparison to her male counterparts.
However, we may never know the real reason why she was fired. Let's face it, when an employee is fired and the possibility of litigation looms, the employer almost always says the termination was for cause due to performance and/or behavioral concerns, and the aggrieved employee says that s/he was a good performer and the termination was discriminatory and/or retaliatory in nature. The reality is the employer wins the lions-share of these legal battles. But in this instance, the Times may have made their situation more problematic.
For starters, if Abramson was fired shortly after engaging an attorney to assist her with ameliorating the effects of sex/wage based discrimination, her termination could be deemed unlawful and in derogation of Title VII and the Equal Pay Act (EPA). Add to this the public statement from Sulzberger where he disparages the performance of Abramson and the matter is further complicated. Most employers do not publicly speak when these issues surface, let alone publicly criticize the performance of the terminated employee. After all, this action could lead to Abramson also suing for defamation and perhaps tortious interference with employment opportunities if the public statements made are untrue. Certainly such statements will not bode well for her future employment prospects, and as such may fuel her fire to sue the Times.
If the Times general counsel has not told Sulzberger to stop talking, now would be the perfect time to have that conversation. But perhaps it is hard to silence someone whom has built his legacy on talking. After all, he is the media and is simply doing what he does best…create a story.
Recent surveys suggest that major corporations are starting to utilize mediation as their favored platform for resolving employment disputes as opposed to arbitration. In fact, over the past fifteen years, companies surveyed relative to their usage of arbitration declined from 62.2% in 1997 to 37.8% in 2011, whereas mediation usage rose from 78.6% in 1997 to 85.5% in 2011.
It is surmised that arbitration is becoming disfavored due to its rising cost and the difficulty of appealing decisions. Previously it was seen as a cheaper and more expeditious form of dispute resolution when compared to litigation. However, in more recent years arbitration has become nearly as expensive and time consuming - and sometimes even more expensive and time consuming - than litigation. Also, while an unfavorable court decision is generally reviewed by an appellate court on a de novo basis, appeals from an arbitral award are generally reviewed on a much more stringent abuse of discretion standard.
Companies are also experimenting with various internal dispute resolution processes in an attempt to resolve cases before litigation begins. These processes range from the utilization of internal staff or external consultant mediators, internal or external ombudsmen, and various grievance processes that in some aspects mirror what is seen in the unionized environment.
Cost savings are typically realized by companies utilizing ADR, and particularly mediation, over the more traditional litigation route to dispute resolution. DuPont Company did a study of their processes and determined that they saved approximately $61,000 on every employment case resolved via mediation as opposed to litigation. With this type of evidence of cost savings, it is surprising that not all major corporations have implemented similar processes.
Hat tip to the ABA Dispute Resolution Magazine for excellent articles on ADR trends at Fortune 1000 companies and the DuPont experience.
To all the mothers who lost their jobs because they took time off work to care for their children, I salute you.
To all the mothers who fought tooth and nail to be treated as equals without sacrificing self, I salute you.
To all the mothers who broke the glass ceiling, I salute you.
To all the mothers that cared little about the glass ceiling, but simply put in a hard days work for a fair wage, I salute you.
To all the mothers who have taken on the role of the "voice of reason" and mediated countless disputes between co-workers, I salute you.
To all the mothers who had to endure sexual harassment on the job and had the courage to endure and even fight back in midst of a nightmare, I salute you.
To all the mothers who were forced to work today, on your day, and sacrificed rest and relaxation for the benefit of remaining employed, I salute you.
To all the mothers that took the day off to celebrate self, even if no one else cared enough to celebrate you, I salute you.
To all the mothers that allowed their nurturing nature to extend beyond their birth children and their parents and to be encompassing of their co-workers as well, I salute you.
On this day, your day, if no one else has acknowledged your sacrifices, your sweat, your unwavering love, your 12 hours of labor, your loyalty, and your commitment, know that I, for one, salute you.
A nice tribute to moms, created by Cardstore.
As most of you know, the EEOC has very detailed Guidelines on when an employer should and should not utilize criminal background checks of applicants when making hiring decisions. Of note, the Guidelines dictate that the criminal background generally should not be held against the applicant unless the nature of the crime is sufficiently related to the potential job making the hiring problematic; and the employer must show that there is a 'business necessity' for utilizing the background check as a basis for rejecting the applicant.
Of great concern to the EEOC is the usage of arrest records which, unlike convictions, have major damaging effect despite the fact that the applicant might not have been charged or convicted of an actual crime. Based upon these concerns, and despite the advocacy of several state Attorneys Generals to have the Guidelines rescinded, the EEOC continues to state it will vigorously fight employers' blanket usage of criminal background checks without a showing that the check and ultimate job denial is related to the job in question or based upon an overriding business necessity. Despite court losses in the last couple of years against the companies Freeman and PeopleMark regarding the EEOC's enforcement attempt relative to the Guidelines, it continued pursuit by way of suing BMW and Dollar General in 2013.
Of course, this is a touchy subject with valid concerns on both sides of the aisle. Proponents of the policy argue that eliminating unnecessary reliance on criminal background checks help with the rehabilitation process and getting ex-criminals gainfully employed. After all, without a job paying sufficient wages to take care of his/her lifestyle, the person has a much higher likelihood to resort back to a life of crime as a mechanism of providing for these needs and wants (I once heard a street performer say to the watching crowd that they should give him money for his performance now to prevent him from having to resort to breaking into (their) homes later). Opponents of the policy argue that employers deserve the entrepreneurial freedom to decide who to hire, and forcing them to consider hiring ex-criminals can lead to substantial tort liability (i.e. negligent hiring claims) if the person subsequently commits a crime on the work premises and/or a crime that harms a coworker.
Perhaps a happy middle ground is keeping the Guidelines but granting employers an affirmative defense to any subsequent tort claims brought due to the hiring. If the employer can show that the employee was qualified for the job, appeared sufficiently rehabilitated such that the s/he didn't appear to pose a safety risk, and the hire was made pursuant compliance with the Guidelines, a presumption of non-liability should be granted. This should meet the concerns of the employer and the desires of the EEOC. Of course, caught in the middle of all of this is the employee. To protect their interests, workers' compensation laws should be amended (if necessary) to provide for coverage to employees injured on the job due to actions of these ex-criminals. This is necessary because some states currently deny claims if an employee is injured by a co-worker but the injury, while happening at work or in connection with the work, is nevertheless personal to the employee (i.e. the ex-criminal does not personally like the co-worker and thus stabs him/her). By fixing these statutes, there can be a 'tenuous' balancing of the competing interests. Ok, which state wants to be first to get started on all of this?! Anyone? Hello?