judicialsupport

Legal Writing for Legal Reading!

Archive for the tag “boss”

A Collection of Deaf Law Writings by James W. Cushing, Esquire

Over the course of my career, I have written extensively on a wide variety of deaf law issues.  These writings have been published in The Legal IntelligencerUpon Further Review, and The Pennsylvania Family Lawyer as well as posted onto my blog.  I have collected these articles and blog posts and have listed them below.  Thanks for reading!

A Collection of Employment, Civil Rights, and Labor Law Writings by James W. Cushing, Esquire

Over the course of my career, I have written extensively on a wide variety of employment, civil rights, and labor legal principles.  These writings have been published in The Legal IntelligencerUpon Further Review, and The Pennsylvania Family Lawyer as well as posted onto my blog.  I have collected these articles and blog posts and have listed them below.  Thanks for reading!

Musings:

My Articles:

U.S. Supreme Court Analyzes Definition of ‘Supervisor’

The United States Supreme Court, in the matter of Vance v. Ball State University 133 S.Ct. 2434 (2013), has weighed in on who qualifies as a supervisor of employees in order to assess liability for work place harassment. The Vance matter fills in the gaps left by the cases of Burlington Industries, Inc v. Ellerth, 524 U.S. 742 (1998) and Faragher v. Boca Raton, 524 U.S. 775 (1998).

 

In Vance, the Plaintiff, a black woman, worked as a substitute server at Ball State University’s (“BSU”) Banquet and Catering division of Dining Services. Over the course of her employment with BSU, the Plaintiff lodged numerous complaints of racial discrimination. Her complaints reached a head with her interactions with a fellow BSU employee Saundra Davis. Plaintiff alleged that Davis intimidated her by giving her a hard time, glaring at her, slamming pots and pans around her, and smiling at her suspiciously. Most notably for the purposes of the Vance opinion, Plaintiff claimed in her complaint that Davis was her supervisor which, alleged Plaintiff, would make BSU liable for Davis’ actions in creating a hostile work environment for Plaintiff. The case turns on whether Davis can be legally defined as a supervisor or as a fellow employee in order to hold BSU liable.

 

Pursuant to Title VII of the Civil Rights Act of 1964, it is unlawful for an employer to discriminate on the basis of race or color and, through case law, an employer can be held liable under the aforesaid Act if it allows for the creation or perpetuation of a discriminatory work environment which, by definition, would unlawfully change the terms and conditions of employment. An employer can be held directly liable for a racially hostile work environment if it was negligent in taking remedial action upon a showing that it knew or should have known about the harassment; however, if the harasser is a supervisor, then an employer can be held vicariously, and strictly, liable for the actions of the supervisor. The Vance Court narrowed an employer’s vicarious, and strict, liability by ruling here that vicarious and strict liability will only attach when/if the supervisor takes a “tangible employment action”, such as exacting discipline upon or transferring or terminating the complaining employee. The rationale for finding an employer vicariously and strictly liable for the actions of a supervisor is that there is a presumption that a tangible employment decision taken by the supervisor must be officially sanctioned by the employer or, at the very least, delegated by the employer; otherwise, the supervisor would not have the authority to make such a decision. Indeed, the Court noted that even if a tangible employment action did not take place, liability can attach to an employer if a complaining employee can show the supervisor created a hostile work environment and the employer can not respond with an adequate affirmative defense for the supervisor’s actions. Affirmative defenses include the employer claiming that it exercised reasonable care to prevent and/or promptly correct the harassing behavior and/or the complaining employee unreasonably failed to take advantage of the opportunities provided by the employer to remedy the matter.

 

When attempting to apply the above to the Vance matter, the Court explored all of the various uses, permutations, and definitions of the word “supervisor” and concluded that its interpretation must fit within the interpretive framework of employment cases. The Court believed that the guidelines provided by the EEOC regarding who or what defines a supervisor are vague and ambiguous. The Court ruled that the ability to direct the tasks of another employee, at least on its face, is not sufficient to qualify someone as a supervisor. The key is whether the alleged supervisor can take a tangible employment action and, in fact, the Court ruled that so doing is the “defining characteristic” of a supervisor. Indeed, the Court indicated that a co-worker can certainly inflict psychological injury and even create a hostile work environment, but a co-worker cannot dock the pay of, or demote, another employee unless s/he is a supervisor.

 

Ultimately, the Court held that the Plaintiff simply provided insufficient evidence to suggest that her harasser directed, or was empowered to direct, her day-to-day activities by BSU, let alone take tangible employment action, sufficient to qualify her as a supervisor to warrant holding the employer vicariously and/or strictly liable.

Originally published on December 24, 2013 in The Legal Intelligencer Blog and can be found here.

The Hidden Inequity in Unemployment Compensation Law

As everyone knows, the current financial climate is precarious at best, which makes knowing one’s rights under Pennsylvania Unemployment Compensation Law vital to one’s financial future. Conventional wisdom, which is largely correct, is the following: an employer must pay unemployment compensation taxes for employees and those employees can collect unemployment compensation benefits if separated from employment (presuming, of course, they meet the statutory eligibility requirements). For unemployment compensation purposes, an employee is basically defined as someone who is dependant upon the business for which he works for income, works for a fixed rate of remuneration from the business for which he works, and whose work is completely controlled by that same business.

Perhaps an employee is best described by what it is not. In contrast to an employee is an independent contractor. Independent contractors, by statutory definition, are ineligible for benefits. An independent contractor is defined by 43 P.S. § 753(l)(2)(B), and the cases decided thereunder, as the following: (1) being free from the direction and control of a purported employer and (2) having an independent business that is not reliant upon a single source for his business. While the above language means is often determined on a case by case basis, general guidelines have been provided in well established Pennsylvania case law. Characteristics of someone who is free from direction and control include, but are not limited to, the following: the individual (1) does not have his taxes withheld by an alleged employer; (2) can accept or reject work at his own discretion; (3) can work for competing entities without fear of reprisal; (4) can control how a job is performed; (5) works without a fixed rate for remuneration; (6) supplies his own tools and/or supplies to accomplish his work; (7) does not receive “on the job training” from the alleged employer; (8) sets his own hours of work; (9) sets his own parameters for his work; and (10) is not dependant upon a single source for his business. As an independent contractor is not an employee, and therefore not eligible for benefits, if one contracts with an independent contractor no unemployment taxes need be paid for that person.

The general rule is if unemployment compensation taxes are paid for an individual, then that person can collect benefits; in the alternative if someone cannot collect benefits, then the unemployment compensation taxes do not have to be paid for that person. However, is there a situation where the tax must be paid for someone but that individual cannot collect? In the context of Unemployment Compensation, the analysis of what makes an employee, as contrasted from an independent contractor, converges onto an owner of a business in a way that is inequitable. The inequity appears to be derived from exploiting both sides of businesses as legal entities independent from both its owners and employees.

An owner of a business, who works and earns income for the business he owns, is considered to be an “employee” for whom unemployment compensation taxes must be paid because the owner depends upon the business for his income and the business completely controls the owner’s work. However, in reality, as the owner of the business, he controls what work the business does and how it is performed. Therefore, the business owner simultaneously controls and directs the business (fitting the criteria for an independent contractor) on the one hand, while being dependant upon and controlled by the business for both work and income (fitting the criteria for an employee) on the other hand. Taking full advantage of a business owner’s dual role as independent contractor and employee, Pennsylvania Unemployment Law as presently written and interpreted, treats a business owner as either an employee or independent contractor when it most benefits the government as opposed to the owner. Therefore, although a business owner pays unemployment compensation taxes on his own income from his business because he fits the criteria of an employee, if that same business owner becomes separated from the business for any reason (except for the exception detailed below) then that business owner is ineligible to collect unemployment benefits because he also meets all of the criteria for an independent contractor listed above. Therein lays the hidden inequity: a business owner must essentially pay a tax for which he cannot receive the benefit.

The only exception that would allow a typical business owner to collect unemployment benefits is if he is forced to terminate his relationship with the business through an involuntary bankruptcy. An involuntary bankruptcy is considered to be analogous to the involuntary termination of one’s employment from an employer. Perhaps this is a clue as to the rationale behind the general rule that business owners must pay for but cannot collect unemployment benefits for themselves. A business owner is essentially his own employer and could hire himself and lay himself off repeatedly at will, theoretically making himself eligible for unemployment benefits over and over again. Perhaps lawmakers believed a business owner holds too much control over the employment relationship with the business itself to allow him to collect benefits.

It is interesting to note that, aside from the above exception, a Pennsylvania statute specifically carves out an exception for real estate and insurance agents in 43 P.S. § 753(l)(4)(17). The statute specifically indicates that although real estate and insurance agents may own, at least in part, the businesses for which they work, unemployment compensation law will specifically deem them to be exclusively independent contractors as opposed to simultaneously employees. Therefore, there is no requirement under Pennsylvania statute for real estate and insurance agents to pay unemployment compensation taxes. Thus far, the cases decided under 43 P.S. § 753(l)(4)(17) have not expanded its application beyond the specific exceptions for real estate and insurance agents to include individuals in other professions but with the same sort of owner/employee arrangement relationship.

Most people expect to have the safety net of unemployment compensation benefits if they unfortunately lose their job. However, if one owns a business and pays unemployment compensation taxes for oneself, he should be aware that the payment of the tax does not entitle him to collect the benefit. This may be clearly inequitable on its face, but until it is changed it is imperative that business owners be aware that the safety net they may be hoping for will not catch them if they can no longer work for their business.

Originally published in “Upon Further Review” on October 8, 2009 and can be found here and on my website here.

Post Navigation