BWSI has written and spoken quite a bit on social media in the workplace as it pertains to users of our staffing software, TempWizard. I am always on the lookout for new social media outlets and while I was familiar with Vine, the new six second video app developed by Twitter, a recent Wall Street Journal article The Latest Social Media Concern for Employers opened my eyes to uses of Vine that I was not aware of. Many new workplace videos are appearing on Vine, some of which shed less than a positive light on employer’s workplaces. The article mentions finding a video of a rental car employee (we won’t say which one) in his uniform smoking from a bong—all you have to do is type into the search box the phrases “hate work” or “bored at work” to get a plethora of videos I am quite sure you wouldn’t want to see your employees in.
As with any new communications medium it takes all of a nanosecond for someone to figure out how to use it inappropriately which is why it is critical to have a proper social media policy. I think as part of your social media policy a business should not only outline what their expectations are, but use it as an educational opportunity for employees to discuss privacy and decorum on their personal accounts. Staffing presents an even bigger issue—imagine if it was one of your contingent workers placed at that rental car agency and the damage that would and could do. The WSJ article mentions that food and retail service industries are particularly vulnerable to this type of thing, but it could happen to anyone at any time frankly. Given that it takes very little time for a particular video to “go viral”, protecting yourself and educating your workforce is a paramount concern.
I love my job working with our staffing industry clients and in developing our staffing software, TempWizard. One of the things that consistently amaze me is how many roadblocks are seemingly thrown in the way of an employer in the manner of employment law, discrimination actions, and worker’s compensation issues. You almost have to have counsel on speed dial to keep up with all the laws, agency guidance, and court decisions. One item I have been particularly following with interest is the arguments regarding a flexible work schedule as a reasonable accommodation under the Americans with Disabilities Act (ADA). A recent decision, but far from final in my opinion, by the Tenth Circuit says that a flexible work schedule is not a reasonable accommodation if it will not allow the employee to perform the essential functions of their job. Essential functions can include regular and punctual attendance, particularly if it is stated as being required in the job description. In Murphy v Samson Resources Co. (10th Cir. May 8, 2013) the court affirmed summary judgment in favor of Samson Resources saying that the employee was not qualified for her position due to excessive absences for migraine headaches.
The court in its decision held that an employee’s request to be relieved of an essential function (in this case punctual and regular attendance) is not reasonable or even plausible as far as accommodation goes. The employee argued that a flexible schedule was a reasonable accommodation to perform her job so she should be qualified under ADA. The employer provided evidence that the employee was making mistakes and not making up all the time missed from the migraine absences. Furthermore, the employee said she should be granted leave under Samson’s short term disability policy as reasonable accommodation to which the courts said it was “uncertain if or when Murphy would be able to return to work given the sporadic nature of her migraines.”
The Tenth Circuit’s decision is by no means the final word on this matter—there is serious division on the EEOC regarding this matter and it will probably have to be decided by the U.S. Supreme Court. As far as staffing agencies go, I don’t think any of them would disagree that attendance is an essential job function (and I am certain their clients would think so!) It is important to realize that the ADA serves a necessary and important need, but seemingly with any well-intentioned legislation there are unintended consequences as well. BWSI will update our blog and communicate with our clients as this issue works its way through the court system. I think the Tenth Circuit’s decision clearly points to the need to include “regular and punctual attendance” in any job description or posting if you are not already doing so.
One of the top items of discussion between users of our staffing software and services and myself is that of employee classification (or misclassification as it may be). At a conference in New York sponsored by the American Bar Association’s labor and employment section a deputy solicitor at the Department of Labor (DOL), Katherine Bissell, said just that—“Just because an individual is labeled an independent contractor does not mean they are.” The DOL is even weighing in on private lawsuits by filing amicus briefs in an effort to have the courts expand their view of the scope of the employment relationship. It is important to note that workers who are classified as independent contractors do not receive benefits, do not get the protection of worker’s comp or unemployment insurance since companies typically do not pay into them, and workers aren’t protected under the Americans with Disabilities Act and the Family Medical Leave Act. Furthermore, the businesses employing and classifying workers as independent contractors don’t pay the employer share of FICA to boot. It is easy to see why a business would want to classify an employee as an independent contractor, but the root of the matter, as it has always been, is the level of control a worker asserts over their hours and work product.
While the DOL states that they are not out to eliminate the independent contractor classification, they want to see it used properly. They currently have an interagency cooperation agreement with 14 states (and growing) to enforce state and federal laws on misclassification. At this same conference it was stated that the DOL is expanding the industries it is targeting for misclassification enforcement, and while they did not elaborate, you can bet that staffing is on that list given its targeted status from the Wage and Hour division of the DOL. You don’t have to look any further than President Obama’s 2014 budget that was recently released when it discusses the Department of Labor’s budget to “Maintain support for agencies that protect workers’ wages, benefits, health and safety, and invest in preventing and detecting the misclassification of employees as independent contractors.” (emphasis added). Independent Contractor lawsuits are notoriously difficult to win for employers (not to mention expensive to defend). It is BWSI’s opinion that if there is even a minor doubt on an employee’s classification to either consult qualified counsel, or to err on the side of caution and classify the employee as a full W-2. Worker classification is nothing to mess around with and the courts with increasing frequency are ruling in favor of plaintiffs bringing misclassification action.