Harvard University Acknowledges Misclassifying Hundreds of Contingent Works in Violation of Union Contract

The university's worker classification practice involved the spectrum of employees, from low-wage workers to technical and highly skillled employees who were hired for particular university projects. The Union charges Harvard with "sloppy" in its record keeping regarding who should have been made regular employees. Harvard's Vice President and General Counsel told the Boston Globe that  the university is investigating "who is misclassified and who has been 'bouncing on and off the payroll'". (Boston Globe, August 12, 1999).

Internal Microsoft Memo Reveals Plans to Use of Temps

The memo tells managers to set "expectations for the remainder of the temporary assignment that is short term and could end sooner than may have been expected". While Microsoft set a policy last year requiring temps who finish an assignment or consecutive assignements of 12 months or more to wait at least 31 days before returning to Microsoft, this policy has reportedly been largely ignored by the company's managers and "Microsoft has looked the other way"

ARCO Temps File Employee Misclassification Class Action

Former and current temporary employees filed a class action suit against Arco on Thursday, June 24, 1999, charging the oil company with misclassifying its workers as "temporary" and "contract" employees to avoid paying them employee benefits over a ten-year period. Arco denied the charges. The plaintiffs allege that they were trained and supervised by Arco. Arco provided their equipment and supplies. They were paid by outside payroll service companies which contracted with Arco to provide this service.  In disputing the claim, Arco responded that it contracted with established companies and not individuals, and that those companies, not Arco, supervised the employees and made all personell decisions regarding the workers. (U.S. District Court, S.D., CA; Los Angeles, June 24, 1998)

Local Governments Banning Casual and Drive-Through Hiring

The practice has been widespread for years in the West, but is relatively new in some Eastern communities.. Suffolk County joins a growing list of locales that already includes Los Angeles, Austin, and Marietta, Georgia that have passed similar controls. The Los Angeles County ordinance is currently being challenged in Federal Court.

Volunteer is entitled to sue for sex discrimination as an employee under Federal Civil Rights Law

The 2nd Circuit Court of Appeals upheld a District Court decision in 1998 in favor of the plaintiff, Victoria Pietras. All probationary volunteer firefighters had to pass a physical agility test. While 95% of men passed the test, only 57% of woman passed. Plaintiff was fired after failing for the test twice and filed a sex discrimination charge with the NY Division of Human Rights and the EEOC. The EEOC rejected her charge on the grounds that she was not an employee eligible for federal relief. She then filed a lawsuit in Federal Court under Title VII claiming the test had a "disparate impact on women". The District Court judge found for the plaintiff. The Appellate Court affirmed, holding that plaintiff was an employee within the scope of Title VII because, although a volunteer, she received several job-related benefits including a retirement pension.. [Pietras v. Board of Fire Commissioners, 2nd Circuit Court of Appeals, No. 98-7334].

Independent Contractors and Other "Non-Employees" May Bring Discrimination Claims Under Texas State Law

The Texas Supreme Court has ruled that companies may be sued by workers who are not their employees for alleged violations of the Texas Commission on Human Rights Act, the state law prohibiting discrimination on basis of race, sex or disability. The Court's based its decision on a standard of whether a company can control a worker's "employment opportunities", having found evidenc to suggest that 'the contracts between the Hospital and Sierra .. put the hospital in a position in which it was able to influence whether Rennels became a Sierra shareholder".   The plaintiff, an El Paso pathologist, filed a claim with the EEOC in 1994 for sexual discrimination when she was not promoted to a shareholder position in her practice group. She was later fired, and brought suit against the hospital, NME Hospitals, Inc., alleging "retaliatory discharge" in violation of the Texas Commission on Civil Rights Act. She was employed by the practice group, Sierra Laboratory Associates, which had contracted with NME Hospitals to be its exclusive provider of pathology work.  A trial court had held that the hospital  was not her direct employer and therefore not   liable under the act.  The Supreme Court, holding that a hospital could be liable to a pathologist who was an independent contractor based on evidence that its had influence over the pathologist's promotion, returned the case to the trial court.  It affects many health care professionals such as hospital-based physicians, radiologists, and emergency room doctors who are independent contractors.  It means increased liability for hospitals and all other Texas businesses that utilize independent contractors, and brings Texas state law in line with many other states and Federal law that permit employment discrimination suits by independent contractors. [NME Hospital v. Rennels, Texas Supreme Court, June 3, 1999]

1st Circuit Upholds Independent Contractor's "Hostile Work Environment" Case Under Federal Civil Rights Law

     The U.S. Court of Appeals for the First Circuit has upheld a lower court's ruling in favor of an independent contractor who filed this suit under Section 1981 of the Civil Rights Act alleging a hostile work environment after his parking lot maintenance contract was terminated by the defendant. The judgement including $300,000 in damages was upheld on grounds that: 1) the law permits independent contractors to bring hostile work environment claims under the law (42 U.S.Code Sectio 1981) and, 2) the evidence was sufficient to warrent the verdict for the contractor. [Danco, Inc. et.at. v. Wal-Mart Stores, Inc., First Circuit Court of Appeals, April 1999)

Supreme Court Rules that a Plaintiff can Sue Under ADA even though She Received Social Security Disability Benefits

The Supreme Court has held that a worker who sues under the ADA is not automatically barred from claiming that she can do a job with an accommodation even if she stated in her application for Social Security Benefits that she is unable to work. [Cleveland v. Policy Management Systems Corp, U.S. Supreme Court, May 20, 1999]

OSHA Study Finds Temps at Greater Safety Risk than their Permanent Employee Colleagues; AFL-CIO urges increased attention to temporary workers' health and safety     

In a national study of employment trends the Occupational Health and Safety Administration (OSHA) found that temporary workers are typically given a shorter training program, with consequently less familiarity about specific hazards of a work site. OSHA's Director of Safety Standards, Marthe Kent, said that employers need to go beyond providing general safety training to temporary employees to ensure that they are also trained on specific hazards.  The safety director for the AFL-CIO suggested that OSHA should pay more attention to health and safety training needs of temporary workers by targeting inspections at worksites known to have temporary workers.

Contingent Employees' Class Action Claim for $49 million in lost ESOP benefits is Rejected by Federal Court.

A Federal District Court in Pennsylvania rejected claims by a class of former Conrail employees who that they were entitled to participate in the company's benefits plan under ERISA as "independent contractors" and "leased employees". Their earnings for purposes of plan distribution, did not include amounts they had earned as independent contractors or leased employees. They claimed collective loss of over $49 million in MSP/ESOP allocaitons.