San Antonio Employment Law Blog : San Antonio Employment Lawyer & Attorney : Thomas Crane Law Firm : South Texas, Bexar County TX Wage & Discrimination Issues

A frequent question arises regarding when an employee is an independent contractor and when is he just a regular employee.  Many employers have moved to using independent contractors instead of employees.  The status of independent contractor can save the employer significant amounts of money in employment taxes, social security payments, etc.

But, the IRS understands that employers have an incentive to stretch the truth regarding an employee's status.  Department of Labor understands this and the courts understand this.  So, every entity has some test to determine whether an employee is truly independent.  Kevin Christensen has written a nice summary of the different tests to determine whether an employee might be considered an independent contractor at his California Employment Blog.  You can also look at a helpful summary provided by the DOL.  

Among the most important factors is 1) the degree and nature of control of the work by the supervisor.  If the supervisor simply asks that a wall outlet be installed, then that employee performing the work may be a true independent contractor.  But, if the same supervisor instructs the employee to use 220 gauge Romex, specifies where and how to tie into existing wiring and provides the Romex wire and tools, then that so-called independent contractor may actually be an employee.  

Another important factor is 2) how integral is the work to the business.  If the business is a bakery, then it seems unlikely they would also be in the business of installing new wall outlets. 

Another important factor is 3) the extent to which the employer provides the equipment and materials of the purported independent contractor.  If a stationery supplier hires truck drivers via a third party, but provides the truck, then it is less likely that the third party is the true employer.  That is, if a) ABC Stationery Supplies provides the truck, b) XYZ Trucking Co. claims to be the true employer but does nothing other than issue a pay check, then it appears that the truck driver is actually employed by ABC Stationery.  As the DOL notes, context is everything.  These tests depend a great deal on individual facts.  

Perhaps the least relevant factor is how is the alleged employee paid.  Obviously, a true independent contractor would be paid by the project, not by the hour. 

The independent contractor distinction is very important. if an employer mis-classifies an employee as an independent contractor, then that employer could become liable for unpaid overtime for a time period of years. 

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Settling a discrimination lawsuit is never easy.  The employee and employer both have to develop some understanding of evidentiary issues, personnel issues and employment caselaw within a very short amount of time.  I have discussed settlement before, here, and here.  The client must also come to some understanding of the opposing side and how they view the case. 

In dealing with employees, some, a very small percentage come into the process with high expectations based on everything from spilled coffee cases to personal injury lawsuits with mega-million verdicts. These clients will tell me with a straight face that they want to be reasonable and not greedy, so $1 million or $100,000 is very reasonable.  They need the money to pay medical bills, past due mortgage payments, etc.  

But, discrimination lawsuits are not personal injury lawsuits.  We cannot seek amounts for medical bills or overdue mortgage payments.  Title VII of the Civil Rights Act prescribes what we can ask for: lost pay and benefits, compensatory damages (emotional suffering), punitive damages and costs of prosecuting the lawsuit.  So, it really is a non-starter to ask for a higher amount to "cover medical bills."  The employer will not respond to that sort of a settlement demand.  The employer wants to deal in reality, not a wish list.

The employer is typically very upset they even have to even hire a lawyer.  "I know Joe [Manager].  He is not sexist,"  many employers say.  They believe every lawsuit is frivolous.  So, why would someone with that view consider amounts based on personal need and not on actual value of the lawsuit? Why would an employer consider damages to which the employee is not entitled?  Even making a request not grounded in reality reinforces the employer's preconception that the lawsuit is frivolous. 

A client told me once that they were sure they could obtain a larger amount.  I could not dissuade him, so "fine," I thought, "let's try an amount based on personal need, not on reality."  Sure enough, two weeks later, the employer refuses to respond to an offer ten times what an average jury would award.  The emloyer simply declined to make a counter-offer.  The employee was shocked at the lack of response.  I was not.  Would anyone buy a used car for ten times the blue book value?  

It is the lawyer's job to educate clients.  We are the guide through a complicated process.  But, some clients do not want a guide.  They think they know, already.  To those clients, I eventually say, "well, then you do not need me . . . ."

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Mike Maslanka, who pens a blog oriented toward employers wrote a helpful post on terminating employees.  Mike is well read on management and leadership techniques.  He suggests the following:

1.  Conduct the termination meeting at the employee's work space or office.  He explains that the manager can get up to leave after completing the difficult task.  The manager can "escape" when the meeting concludes.  And, going to the employee's space also suggests some level of respect for the employee.

2. It may be unethical to keep an employee in a position in which they are not a good fit.  You, the manager, owe it to the employer to not retain folks who do not fit.  It is as much a strain on the employee as it is on the employer. 

3. Be patient.  The manager has had time to adjust to the new reality, the employee has not.  Give him/her time to digest what you have said.  They say a termination should never be a surprise.  But, truly, it almost always is a surprise on some level.  No manager should schedule an appointment immediately following a termination meeting. 

4. Allow the employee to retain some dignity.  As Mike explains, that means different things to different people.  To Mike, it means do not show false empathy.  Do not say "I know how you feel" unless you have been fired yourself before.  The best thing you can do is simply allow the employee some time to compose him/herself.  Silence is golden and respectful. 

5. Mike also suggests you look at yourself.  Ask yourself how and why you hired the wrong person. In the Army, we conducted "after action reviews" after every major training exercise.   The goal was to analyze the good and the bad.  Every termination, just as every major employment issue, should result in some improvement to the organization. 

If every employer followed these tips, lawsuits would decrease dramatically.  See Mike's post for more information.  

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 I spoke about depositions in general a couple of weeks ago.  Now, let's talk about employee depositions in a San Antonio employment lawsuit.  The plaintiff employee deposition is critical to success for any employment lawsuit.  The plaintiff employee must be able to show the opposing attorney and the employer that the employee can testify, can present well to a jury and tell a coherent story.  It is not as easy as it sounds.

The employee has to get past some of the pain, enough to testify without breaking down.  Too many tears will impede a story.  And, as Mike Maslanka shows in a recent post, the plaintiff employee must be able to look at his/her case with enough objectivity to admit possible error on his/her part.  Mike mentions one if his favorite questions to ask (in a deposition, I am sure) "what errors on your part helped lead up to the termination?"  No one is perfect, so if you answer, "none," you risk appearing dishonest.  If you admit to too many mistakes, or to some very significant mistakes, then you risk losing your entire case.  

The plaintiff employee deposition will go as long as several hours and as short as a couple of hours.  It is emotionally draining for every client I have had.  It can get intense.  The plaintiff employee must re-live the very horrible experience of losing a job through no fault of his or hers.  I have had many clients cry either during the deposition itself or during a break.  

Some clients do not hold up, at all.  Some plaintiff employees are suffering from various issues that cause them to be easily lead by opposing counsel.  One former client admitted to opposing counsel that he complained about discrimination on Tuesday, even though he and I both knew it was Monday.  if it was Monday, then he had a good retaliation claim.  If it was Tuesday, then he had no retaliation claim.  Why would he say Tuesday?  I may never know, other than he was simply easily lead on cross-examination.  

Employers will often ask the same question two or three times.  The same question.  But, it is an important question.  "State all facts on which you believe you were the victim of discrimination."  If the plaintiff employee omits one or two key facts, then s/he may lose the right to allege those key facts in the lawsuit.  

Another "catch-22" is that nice is important,  Any witness risks offending the jury if the witness is too rude or pushy.  Niceness does count.  But, if the witness or plaintiff employee do not "fight" for their position in a deposition, then they risk the opposing lawyer defining their story.  The plaintiff employee must be "nice" to some degree, but s/he also needs to fight for her answer, sometimes. 

Cross examination is all about one word answers.  Opposing counsel wants the plaintiff employee to answer yes or no.  But, some questions require explanation.  "Isn't it true you never called in when you were sick?'  Yes, but.....  "Yes, but the employer did not require employees to call in if they were ill more than one day.  We did not have to call in everyday if we were out more than one day."    The explanation fills in a huge gap about why the employee did not call in.  At some point, the employee plaintiff must provide this key fact.  The risk is that in not providing a key fact, the plaintiff lawyer may not be able to use that key fact when the judge decides summary (ie, quick) judgment.  

So, yes, the plaintiff employee deposition is very important.  

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Personal emails at work are sometimes protected from intrusion and sometimes not.  The email system belongs to the employer.  One indicator that work generated emails may be protected occurs when the employer allows some personal use of email.  See the case discussed at one blog post.  But, see another case discussed at a different blog in which the employee's emails were found not to be protected from review by the employer.  The biggest difference in the two cases is that in the first case, the employer did allow some personal use of the employer's email system.  That court found that yes, the employee had a reasonable expectation of privacy in such a situation.  

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 Employers, if they are doing their job, should counsel an employee in writing for a serious offense.  Part of that counseling is the need to verify that the employee has received the written warning and understands it.  That is why the employer will ask the employee to sign the disciplinary warning.  Signing does *not* mean you agree with it.  It only means you have received the warning.  

A very helpful website, www.canmybossdothat, explains this and more.  

When you do get a written warning, if you can, you want to add a brief sentence or two about your side of the story.  Add your story and then sign it.  Ask for a copy of the write-up if a copy is not offered. 

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 "Do unto others as you would have others do unto you"  The famous words known as the golden rule.  Its a Christian precept designed to encourage us to treat others as we would like to be treated.  Unfortunately, in the work place, we must sometimes treat others as we must in order to survive, or so we think.  "Niceness" does count in lawsuits.  Extending basic courtesy, or making a generous gesture make a difference in a lawsuit.  

You, as an employee, may be locked in a huge fight, or simply engaged in an ongoing tit-for-tat with your employer.  The struggle may last months or years.  But, everything you do will become magnified if your dispute becomes a lawsuit.  A judge or jury will look at what you did and draw critical conclusions about you as a person.  The judge understands the law, but s/he sees so many lawsuits that personal differences alone may make you stand apart from the horde of losing employees.  A jury, on the other hand, may understand little of the law in a discrimination case.  But, they will well understand an employee "smarting off" to a manager or refusing to perform some task at work.  

The simple things have a way of crystalizing a case for a jury.  It is in your interest to do the right thing,  Because, if you do not,  it can cost you an otherwise winable case.  

That is partly why a leading defense lawyer warns employers to follow the golden rule.  

The more difficult the issues become, the more nasty your dispute may become, the more important it is to follow the golden rule.  Do the right thing.  You will live better and you will have a better chance of winning. 

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