HR Morning News, Page 16 Category

There are a number of different ways for employers to determine whether an individual is a full-time employee or an independent contractor (IC), but is there one single method all companies should be using? In recent guidance, the DOL answered that question with a resounding “yes.”  

The DOL issued a 15-page Administrator’s Interpretation, which was written by DOL administrator David Weil, on how employers should distinguish between employees and contractors and classify accordingly.

Economically dependent or not?

Simply put: Employers should always use the DOL’s “economic realities” test to determine a worker’s classification. This test is designed to determine whether:

• an employee is economically dependent on the employer, which would make him/her an employee, or
• the person is in business for himself or herself, which makes him/her an IC.

The economic realities test includes the following six factors that employers can use on a case-by-case basis to pinpoint the correct way to classify an individual:

1. the extent to which the work performed is an integral part of the employer’s business
2. the worker’s opportunity for profit or loss depending on his or her managerial skill
3. the extent of the relative investments of the employer and the worker
4. whether the work performed requires special skills and initiative
5. the permanency of the relationship, and
6. the degree of control exercised or retained by the employer.

‘Most workers are employees’

The DOL’s guidance comes right on the heels of a controversial ruling about worker classification made by California’s Labor Commission. Just last month, the Commission caused quite a stir among employers everywhere when it said that Uber drivers were actually employees and not ICs.

Now it seems like the DOL feels the need to weigh in on the contractor issue.

One major takeaway for employers on the contractor issue is the DOL’s statement that “most workers are employees.” Weil elaborated on this by stating:

In sum, most workers are employees under the FLSA’s broad definitions. The very broad definition of employment under the FLSA as “to suffer or permit to work” and the Act’s intended expansive coverage for workers must be considered when applying the economic realities factors to determine whether a worker is an employee or an independent contractor. The factors should not be analyzed mechanically or in a vacuum, and no single factor, including control, should be over-emphasized. Instead, each factor should be considered in light of the ultimate determination of whether the worker is really in business for him or herself (and thus is an independent contractor) or is economically dependent on the employer (and thus is its employee).

In short, the guidance serves as an important reminder to employers everywhere — through statements about how most employees are contractors — about just how important it is to be absolutely certain ICs are classified correctly and reminds them the economic realities test is the best way to make that determination.

After suffering a defeat at the hands of the Supreme Court in the high-profile religious discrimination case brought against it by former applicant Samantha Elauf, retailer Abercrombie & Fitch has decided to settle with Elauf. 

To end the case, which began in 2008 when the EEOC filed charges on Elauf’s behalf, Abercrombie has agreed to pay $25,670 in damages to Elauf as well as $18,983 in court costs.

According to a statement released by the EEOC, the damages figure is equal to what a jury awarded her in 2011, prior to an appeal by Abercrombie.

Conflict with ‘look policy’

This all started when Elauf applied for a job at an Abercrombie & Fitch store in her hometown of Tulsa, OK. Elauf wore a headscarf or hijab as part of her Muslim faith, and she was denied hire for failing to conform to the company’s “look policy,” which banned head coverings.

Elauf filed a charge with the EEOC, which then filed a religious discrimination suit against the company on her behalf.

But Abercrombie prevailed in appeals court by claiming it didn’t have to relax its “Look Policy” because Elauf never asked it to do so — or even mentioned her religion. Abercrombie argued that Elauf needed to provide explicit, verbal notice of a conflict between the policy and her religious practice.

The EEOC then asked the Supreme Court to hear its case, which it did.

The High Court’s verdict came down earlier this summer. In an 8-1 decision, the court ruled Elauf was not required to make a specific request for a religious accommodation.

The court majority said there was enough evidence to show that Abercrombie knew she wore the head scarf as part of her religious practice and refused to hire her to avoid having to accommodate her religious practice.

So the case was remanded back to the appeals court, which was asked to reexamine the case using the High Court’s thinking: If an employer has an idea that an individual would need a religious accommodation, the employer is obligated to explore whether it could reasonably grant such an accommodation.

But before the court could take second look at the case, Abercrombie settled.

In the agency’s statement, EEOC General Counsel David Lopez said:

“We were extremely pleased with the Supreme Court ruling in our favor, which has reinforced our longstanding efforts to enforce Title VII’s prohibition against religious discrimination. We are now even more pleased to have final resolution of this case and to have Ms. Elauf receive the monetary damages awarded to her by a jury in 2011.”

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It’s worse than we thought. Workplace rudeness isn’t just corrosive — it’s catching.  

Alisson Clark, writing on the University of Florida website, reports that a recent U of F study indicates that encountering rude behavior at work makes people more likely to perceive rudeness in later interactions.

The perception makes them more likely to be impolite in return, spreading rudeness like a virus, she says.

“When you experience rudeness, it makes rudeness more noticeable,” Clark quotes lead author Trevor Foulk, a doctoral student in management at UF’s Warrington College of Business Administration. “You’ll see more rudeness even if it’s not there.”

The study findings were recently published in the Journal of Applied Psychology. The researchers say they’re the first  hard evidence that everyday impoliteness spreads in the workplace.

The study tracked 90 graduate students practicing negotiation with classmates. Those who rated their initial negotiation partner as rude were more likely to be rated as rude by a subsequent partner, showing that they passed along the first partner’s rudeness. The effect continued even when a week elapsed between the first and second negotiations.

Second-hand rudeness?

Rudeness directed at others can also prime our brains to detect discourtesy, Clark said.

Foulk and his co-authors, fellow doctoral student Andrew Woolum and UF management professor Amir Erez, tested how quickly 47 undergraduate students could identify which words in a list were real and which were nonsense words. Before the exercise began, participants observed one of two staged interactions between an apologetic late-arriving participant and the study leader. When the leader was rude to the latecomer, the participants identified rude words on the list as real words significantly faster than participants who had observed the neutral interaction.

The impact of secondhand rudeness didn’t stop there, however: Just like those who experience rudeness firsthand, people who witness it were more likely to be rude to others. When study participants watched a video of a rude workplace interaction, then answered a fictitious customer email that was neutral in tone, they were more likely to be hostile in their responses than those who viewed a polite interaction before responding.

“Part of the problem is that we are generally tolerant of these behaviors, but they’re actually really harmful,” Foulk said. “Rudeness has an incredibly powerful negative effect on the workplace.”

The Equal Employment Opportunity Commission has filed a religious discrimination lawsuit against package delivery giant United Parcel Service.  

According to papers filed in federal District Court in New York, UPS violated federal law by discriminating against applicants and employees around the country whose religious practices conflicted with its uniform and appearance policy.

UPS prohibits male employees in customer contact or supervisory positions from wearing beards or growing their hair below collar length. According to EEOC’s complaint, since at least 2004, UPS has failed to hire or promote individuals whose religious practices conflict with its appearance policy and has failed to provide religious accommodations to its appearance policy at facilities throughout the United States.

The agency offered several situations in which, it is alleged, UPS violated anti-bias law:

• A Muslim who applied for a driver helper position in Rochester, N.Y., who wears a beard as part of his religious observance, was told he had to shave to get the position. He was also told, “God would understand” if he shaved his beard to get a job and that he could apply for a lower-paying job if he wanted to keep his beard.
  Muslims and Christians at other facilities were forced to shave their beards in violation of their religious beliefs while they waited months or years for UPS to act on their requests for religious accommodation, EEOC said.
• Similarly, a Rastafarian part-time load supervisor in Fort Lauderdale, who does not cut his hair as part of his religious beliefs, asked for an accommodation of the appearance policy. His manager told him he did not “want any employees looking like women on (his) management team.” Rastafarians in other parts of the country were denied positions or waited years for their requests for accommodation to be granted so they could finally get the position they sought, the agency claims.

According to company information, UPS is the nation’s largest package delivery company, operating in every state in the country. The Atlanta-based company employs over 300,000 people nationwide, with additional operations around the globe.

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