July 28, 2010

Workplace Bullying — is it really that big of a deal?

Posted in Bullying, Harassment, Workplace Violence tagged , , , , at 9:21 am by Tom Jacobson

Several months ago, the following question was posted on the Society for Human Resource Management (SHRM) discussion group on LinkedIn:  Workplace bullying:  Is this HR’s responsibility to control?  To date, the question has prompted 510 comments, far more than any other question currently circulating among the group.

Undoubtedly, stopping the workplace bully is important for any number of reasons.  Bullying diminishes productivity, hurts morale and could lead to liability under several legal theories. 

But, the SHRM discussion makes me wonder:  is workplace bullying really that big of a deal?  What do you think?

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.
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July 22, 2010

Scent Company Passes Smell Test after DOL Independent Contractor Audit

Posted in Contracts, Independent Contractors tagged , , , , at 11:28 am by Tom Jacobson

St. Croix Sensory, Inc. is a sensory laboratory that specializes in odor testing, training, and sales and rental of sensory equipment. It hires “sensory assessors” to perform odor evaluations. The company enters into a contract with each assessor that states that the assessors are independent contractors and not employees.

These relationships worked well until the Minnesota Department of Labor started sniffing around during a routine audit. After that audit, the DOL determined that the assessors were employees, not independent contractors. The DOL ordered St. Croix to pay unemployment taxes on the wages earned by 37 workers.

Thinking that the DOL’s decision really stunk, St. Croix appealed to the Minnesota Court of Appeals. In its July 20, 2010 decision the COA overturned the DOL’s determination and ruled that the workers were independent contractors.

In its sixteen-page opinion, the COA emphasized that the contracts themselves were not determinative. The COA also stressed that because there is no general rule that covers all situations, each case must be judged upon its own particular facts. The COA then analyzed in detail the five main factors it considered: (1) The right to control the means and manner of performance; (2) the mode of payment; (3) the furnishing of material or tools; (4) the control of the premises where the work is done; and (5) the right of the employer to discharge. The COA also considered thirteen other criteria recognized under Minnesota law.

Ultimately, the COA found that based on the facts in this case, St. Croix’s sensory assessors passed the independent contractor smell test, so St. Croix came out smelling like a rose.

The case is St. Croix Sensory, Inc. v Department of Employment and Economic Development. You can read the COA’s opinion at http://bit.ly/apRUOq.

 

The case highlights how important it is to not rely on just a contract or loose “independent contractor” designations of workers. Rather, the entire working relationship must be considered in light of all of these factors. After all, if workers smell like employees, they are employees even if they are called independent contractors.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

July 6, 2010

DOL Interprets FMLA to Apply to Non-traditional Families

Posted in Family and Medical Leave Act, Leaves of Absence tagged , , , , at 11:08 pm by Tom Jacobson

In a June 22, 2010 administrative interpretation (Administrator’s Interpretation 2010-3), the U.S. Department of Labor has clarified the definition of “son or daughter” as it applies to leave requests under the Family and Medical Leave Act. Although the DOL noted that each case will have to be judged on its particular facts, the department also concluded that “either day-to-day care or financial support may establish an in loco parentis relationship where the employee intends to assume the responsibilities of a parent with regard to a child.” This interpretation expands the availability of FMLA leave to “non-traditional” families, including those in the lesbian-gay-bisexual-transgender community.

You can read the DOL’s interpretation at http://bit.ly/bcmXXk.

As a practical matter, the DOL’s interpretation means that employers subject to the FMLA will need to evaluate their FMLA policies to make sure they are compliant with this expanded definition of “son or daughter.” It also means that a much broader class of employees will now be eligible for FMLA leave.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.
 

 

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