Posts Tagged ‘Lori Buntman’

The U.S. District Court for the Eastern District of Virginia recently held that a laborer hired by a subcontractor cannot sue the construction project’s general contractor for same-sex harassment. In the lawsuit, Matthew Allen alleged that an unidentified man from another company made sexual advances towards him. After reporting the incident to the general contractor, D.A. Foster Company, Inc., the man who allegedly made the advances was ejected from the worksite. Allen alleged, however, that he was continually harassed by coworkers who had heard about the incident. Allen filed suit against the general contractor, and Barnes Excavating, the subcontractor, alleging, among other counts, discrimination, hostile work environment, retaliation, and retaliatory termination in violation of Title VII of the Civil Rights Act.

The court held that claims against an employer under Title VII may only be brought by an employee, not an independent contractor, against an employer. To determine whether the claimant is an employee or independent contractor, courts weigh several factors of the conventional master-servant relationship. While no one factor is determinative, several factors are considered, including: the workers skill required; who provides the tools required; location of the work; duration of the relationship; the hiring party’s right to assign additional projects to the hired party; the extent of the hired party’s discretion over working time and hours; the method of payment; and whether the work is part of the regular business activities of the hiring party.

In the case at hand, D.A. Foster was the general contractor who subcontracted excavating work to Barnes. Barnes directly hired Allen as a laborer and assigned Allen to work on the project supervised by D.A. Foster. Although D.A. Foster provided some guidance and training for the project, and the company does regularly perform work in this industry, the level of control over Allen did not rise to the extent necessary to establish an employee-employer relationship. The court held that, with respect to D.A. Foster, Allen was an independent contractor. Most tools were provided to Allen by Barnes Excavating, not Foster. Allen worked under the direct supervision of and was paid by Barnes. The court found that Allen could not reasonably believe that he was an employee of D.A. Foster. Thus, the court granted summary judgment in favor of D.A. Foster.

While in the case at hand the general contractor was not subject to liability on the claim, employers still need to be weary of the current trend to try towards expanding the definition of who is the “employer.” Particular attention should continue to be paid to the IRS independent contractor test and, in particular, the most recent movement of the NLRB to redefine joint-employer status. The consequences of misclassifying an employee as an independent contractor can be significant. The case should also serve as a reminder to all contractors that they need to take steps to make sure that their jobsites are free from any kind of harassment.

This article is authored by attorney Lori L. Buntman and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice.  Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

 

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Posted in Construction, Disability Discrimination, Sex discrimination | Comments Off on Harassment on the Worksite; Can the General Contractor be Held Liable?

Joint Employer Status and the NLRB

Late last month, NLRB General Counsel Richard Griffin announced that he has authorized issuance of Unfair Labor Practice Complaints based on 43 of the 181 pending charges against McDonald’s, USA, LLC and various of its franchises, in which the Board will allege that the company and its franchisees are joint employers. This decision goes against decades of decisions and case law and could potentially be devastating to the franchise system as we know it. If upheld, the determination would bring McDonald’s (with its deep pockets) to the bargaining table in connection with a wide variety of employment related claims. The financial strength of McDonald’s would make forming a union more attractive to workers. McDonald’s, and other franchise chains, may also have to step up its policing of franchises and spend more time and money monitoring stores to prevent labor infractions.

This announcement comes as the NLRB, in an unrelated case involving Browning-Ferris Industries of California, is reviewing its standard for determining when businesses should be considered joint employers. Traditionally, to establish joint employer status, there must be a right to control. Both legally separate employers must have direction or ability to co-determine the hiring, termination, wages, hours or any other essential terms and conditions of employment. In the Browning-Ferris Industries case, the Teamsters sought to represent a bargaining unit of employees who it claimed were jointly employed by BFI and its staffing agency. The Regional Director, however, determined that the company and the staffing agency were not joint employers with respect to workers at one of the company owned recycling facilities because BFI did not exert sufficient control over the agency workers. The Teamsters sought review of this decision, which was granted by the NLRB, finding this as their opportunity to expand the test for establishing joint employer status. In a very unusual move, General Counsel Griffin filed an amicus brief urging the Board to adopt a new broader standard.

What this means for all businesses: This potential new standard for determining joint employer status may leave more employers liable for alleged labor law violations and potentially force more companies to come to the bargaining table. This possible new standard will affect every business that subcontracts or outsources any function. It seems that it may become futile to try to avoid joint employer status and, instead, companies need to investigate business practices to make sure that any other company they are in business with is doing everything as close to 100% correct as possible. In the alternative, companies may need to explore the option of eliminating the use of certain contractors completely.  At a minimum, the company should be sure to include a strong indemnification provision to hold the individual contractors or suppliers responsible for any liability suffered as a result of their noncompliance with legal responsibilities. Of course any such indemnification will be meaningful only if the other party has the financial resources to back it up.

This article is authored by attorney Lori L. Buntman and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice.  Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

 

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Posted in NLRB, NLRB, Union | No Comments »