Employment Law

WAGE CLAIMANT WINS PARTIAL SUMMARY JUDGMENT

Both Washington law and federal law are clear that simply calling a wage earner an “independent contractor” does not make it so.  We recently won a partial summary judgment in our client’s favor by demonstrating that the written contract, the business license, and the requirement that he submit invoices in order to be paid his wages were sham constructs devised by his employer.  The court reviewed the evidence and agreed.  We now will proceed to trial on the only issue remaining — how much he is owed.

This firm advises clients on both sides of the employment table.  We routinely advise business owners that the manner in which parties themselves approach the relationship will govern whether it is legally found to be a true independent contracting relationship.  If you are a business owner and you need help to achieve your business objectives, seek the guidance of an attorney to determine what is — and what is not — likely to be viewed as a truly independent relationship.  The old “control” test has been set aside for the newer “economic realities” test.  If this position is the sole or primary means of supporting the wage earner, it is likely to be found as employment and not independent contracting.

Paying payroll taxes, overtime, and insurance for employee conduct is a challenge for small businesses.  There are benefits to both employment and independent contractor relationships.  Seek good counsel to determine how far you can go, IF you can go, in either direction.

If you are a wage claimant, do not be discouraged by the fact that you signed a document stating you are just an independent contractor, and have agreed to be paid if and when the owner is paid for your work.  Such agreements are not enforceable if you truly were employed by the business and dependent upon your earnings there as a sole means of support.

WRONGFUL TERMINATION BASICS

1. Do you work for a public entity (the federal government, state government, local government, school district, hospital district, etc.)? If not, then:

2. Do you have a written employment agreement such as an offering letter, an actual contract, a collective bargaining agreement? If not, then:

3. Do you have an employee policy manual that actually indicates you have the right to certain procedures before being fired? (This is very rare, by the way).

IF NOT, then:

A. You are likely among the majority of Americans who have no “right” to continued employment.

B. This is true even if you have done an excellent job and have stellar performance evaluations and reviews.

C. The exception is if you have actual evidence that your termination was based upon a protected status. This is also fairly rare.

Review the facts before calling an attorney. Be honest with yourself. Termination from employment is difficult, disappointing, and financially crushing. However, an attorney will want the facts before meeting with you, and may require $100 to $250 just to meet and review your facts.

Review your payroll records. Ensure that you were properly paid, including prompt payment by the next payroll cycle for your final wages, and any benefits that you are entitled to be paid even after termination. (This often does not include vacation pay, sick pay, and other benefits except in special cases).

Cheaper counseling, to tell your story and get it off your chest, is available. Talk to a therapist (usually less expensive, often more effective in this situation).

If you remain convinced that your termination was wrongful, gather ALL of your documents. Write to your employer, and send your letter by certified mail, requesting a fully copy of your employment file (including any supervisor’s files). You also have the right to request a written reason for your termination. Keep a signed copy of your letter, and staple the green mailing receipt to it when you receive it back from the post office.

If you truly believe your termination was wrongful, and you believe it was discriminatory, IMMEDIATELY report your belief and the evidence supporting it to the EEOC or state HRC. Both have excellent websites.

After securing your administrative rights by filing your discrimination complaint, contact experienced employment counsel. Do not make a bad impression by calling before you have taken the above steps. The factual, direct, concise approach will be more compelling to your potential counsel.

Be honest concerning any problems with your case. If you had numerous warnings about being late, or absent, or with your performance…say so. Otherwise, you will simply waste your time and the attorney’s. This will not make your case impossible, but it is something that must be dealt with immediately. Your attorney cannot confront what s/he is unaware needs to be managed.

Independent Contracting Guidelines

Most people know that there is a distinction between becoming an employee and becoming engaged as an independent contractor. When the lines are not clear, problems arise. The distinction matters with:

*taxes
*insurance
*overtime pay
*liability
*statutory penalties for failure to pay properly
*attorney’s fees in litigation

It is VERY important to be clear about each of these issues at the outset of a relationship. With mandatory health insurance becoming a requirement for large employers, the temptation is strong to convert traditional employees into independent contractors. The temptation should be carefully scrutinized, and usually, avoided.

A review of Washington law is available at http://www.lni.wa.gov (workplace rights). The federal equivalent is found at: http://www.dol.gov.

The “old” rule was governed primarily by who had the right to control the manner, means, and methods of the work. The more control that was exerted by the party paying for the service, the more that relationship looked like traditional employment and less like an independent contractor relationship.

However, savvy employers seeking to avoid payroll taxes, liability for accidents involving employees, insurance costs and higher wages for overtime drafted contracts that, on paper, gave the service provider the look of an independent contractor. They created:

*Contracts
*Invoices
*Business entities

However, the ability to earn more money was governed solely by the ability to work more hours, and only if the employer deemed those hours necessary and available.

Today, courts follow the “economic realities” test. The inquiry focuses on whether one company is the sole source of an individual’s income. If so, the economic reality is that this individual does not really function independently.

The existence of a written agreement calling the relationship one of independent contractor does not change the economic realities. Nor would creating invoices instead of time cards. Nor would absence of hours worked, pay rate, or taxes on a check stub convert the payment into one for contract instead of an employee paycheck.

Accordingly, when faced with your own decision to hire or be hired as an independent contractor, ask: (1) What is the purpose of the arrangement? (2) Would a written contract really matter given the new economic realities test? (3) Does the service provider have other customers or accounts? (4) Is this to be a lengthy relationship? (5) Is there a better way to account for and deal with issues of taxes, insurance, liability, overtime and scheduling?

Care should be taken to consult with a legal professional that has a strong employment background before proceeding.

Americans with Disabilities Act – Allergies Unlikely to Support Claim

Q:  I have been suffering severe migraine headaches and other symptoms for the last year or so.  My doctor and I have slowly figured out that it is a perfume allergy triggered by my work environment.  My sister advises me that I can demand that my employer accommodate my severe allergies as a disability under the Americans with Disabilities Act (ADA).  My husband found several articles on the Internet indicating to me that this information is correct.  However, I demanded that my employer insist on a scent-free workplace, and they have refused to do anything.  Now what should I do?  If I quit, can I still file a claim under the ADA?  Can I collect unemployment?

A:  By:  Saphronia Young

In my opinion, you do not have a claim under the Americans with Disabilities Act.  Although this federal law was amended in 2008 to make filing claims a bit easier, a claimant still must prove that the condition or disability substantially impairs a major life activity.  Several published federal cases have held that allergies do not constitute a disability.

You also need to know whether your employer would even be covered by this federal law.  This will depend upon how many employees work for the company, the dollar volume of business, and whether the company engages in interstate commerce.

However, Washington state law is more generous than federal law.  For Washington, the Washington Law Against Discrimination protects more employees in more situations than does the federal law, and more employers come within its coverage.  Additional details about your situation would be needed to analyze whether you have any basis to demand accommodation under State law.

As for quitting and receiving unemployment, there are some circumstances where an employee can still receive unemployment after quitting, but it is a gamble.  The employee must claim that the employer’s actions constituted a “constructive discharge.”  Some situations in which this has been found would be where: (a) the employer’s payroll checks were returned for insufficient funds; (b) the employer failed or refused to pay the correct prevailing wage (on public works projects) or minimum wage (for private work); (c) the employer otherwise behaved in a manner that was so unreasonable that the employee could not be expected to remain (such as severe and ongoing sexual harassment).  Failure to accommodate an employee’s sensitivity to fragrance may very well NOT meet the test.

The problem with quitting a position and hoping to have unemployment is that the employer will probably contest unemployment.  Then, an administrative hearing examiner would weigh the evidence and decide if a reasonable person would have behaved as the quitting employee did.  Many of our clients have been surprised to learn that what seemed obvious to them…that a person could not possibly work for this employer under these circumstances…was not nearly as obvious to the hearing examiner.  All “quits” should be undertaken with extreme caution, if the employee intends to rely upon unemployment during the transition to new work.

What is the solution?  Attempt to “self accommodate” the allergy by taking daily medications, ensuring that your non-work environment is allergen free, and even attempting to use a small, quiet, energy efficient air cleaner at work (you may need to obtain permission, where computers and other equipment could be impacted by additional electrical loads, however small).  There may even be some relief by using commercial sprays that eliminate odors from the air.  Again, ensure that such sprays would not adversely affect others in the office who may have asthma or other conditions.

Remember to document all conversations, emails, and communications with management that surround the issue.  Document all of your efforts through your own physician, medication, home environment, etc. to remain healthy.  Document all attempts to be the most productive employee that is possible.  Do not take company time to attempt your self-accommodation, if at all possible.  Document any accommodations that you observe being made for others, although one must be careful about assumptions based upon third-party observation.  Keep a policy of the employee policy manual, and ensure that you abide very strictly by its terms.  If the manual indicates a company attitude asserting that all efforts to ensure employee productivity, safety and comfort will be made, then you must ensure that you are complying with your obligations before then requesting your attorney to take action for the employer’s breach of such promises.

Finally, be aware that many materials found on the internet concerning legal issues are self-promotional marketing materials placed there by companies that charge law firms for advising that you “may have a claim.”

This summary is not intended to be legal advice. You should consult an attorney in regard to your particular situation.

McChrystal Needs Employment Law Primer

General Stanley McChrystal has gone from being the military savior of a nation to the disgraced poster-child for “lack of judgment” in a matter of months.  What went wrong?

Let me suggest that it is this:  Any employee worth her/his salt knows that the primary function of any job is to make the boss look good.  Can President Obama fire McChrystal for having made unflattering comments to a reporter?  In Washington state, the answer would be, “Yes.”  Even if those comments were made off the job site, after hours, and were merely McChrystal’s opinions?  Again, in Washington state, the answer would be “yes.”

Both employers and employees approach our firm with questions about where the line should be drawn between respecting an employee’s right to express opinions, make suggestions, and offer constructive criticism versus behavior that is negative, lowers morale, and is viewed as insubordination.  Uniformly, we advise clients (both employers and employees) as follows:

1.  It is the employee’s job to make the boss look good;

2.  Sometimes, the boss needs to be told difficult truths for the longer and larger objective of protecting the boss, and the company, from the boss’s own behavior;

3.  If the employee sincerely was advising the boss of difficult truths in order to serve the company’s larger goals and interests, the company should take into account that “slaying the messenger” is not always the smart thing to do, no matter how tempting.  HOWEVER, absent an illegal motive (such as racial, sexual, disability or other discrimination), bad management and poor business choices remain — largely — completely legal.

General McChrystal should have known what even most entry-level employees know:  you are expendable, and if you make your boss look bad, then your excellent job performance cannot alone save your job.  In this case, possibly cannot even save your career.

This summary is not intended to be legal advice. You should consult an attorney in regard to your particular situation.

Triangulation in the Work Place (“gossip”)

By: Saphronia Young

Clients frequently encounter difficult situations at work that originated in triangulated communications…i.e., gossip. Such behavior is toxic, whether at work, in social settings, or even in religious communities. Gossip sometimes serves a purpose. It can reaffirm between the “in” parties the values, roles, traditions and culture that are being promoted and that the “other” person may actually have violated.

However, it frequently does so at the expense of more honest, forthright and compassionate communications around the issues being discussed. If the violator of company rules or protocol is not aware of the violation, they cannot address it. If the violator becomes aware that s/he is accused of violating a policy or protocol only through gossip, the immediate reaction is not likely to be one of honest self-reflection, but more likely will be angry, resentful, and unhappy at having been subjected to treatment as an “outsider.”

Why does this matter legally? Because such feelings can foster legal claims. Recent case law suggests that retaliation claims may be supported by evidence that the claimant was being talked about in the gossip chain. Privacy claims can be supported by allegations that information only a direct supervisor and Human Resources should have known about was being discussed in the gossip channels. Sexual discrimination claims have been supported by evidence that the victim’s private life was subject to scrutiny, where the private life of men in the office (or heterosexuals) was not.

Therefore, good managers will see triangulation for what it is…a dysfunctional way of trying to communicate. That dysfunction can blossom into legal problems. Management bears the responsibility for including “no gossip” policies in HR manuals, for sending out reminders about the “no gossip” policy, and for encouraging mediation or other direct communication between employees who have issues with each other.

This summary is not intended to be legal advice. You should consult an attorney in regard to your particular situation.