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The Employer E-Letter: Labor and Employment Law News from the Duluth, Minnesota law firm of
Hanft Fride, A Professional Association.
Editor, Richard R. Burns, rrb@hanftlaw.com or 218.529.2433.
Please feel free to forward this e-mail or share it with others. If there are other topics of interest to you or any other suggestions concerning this newsletter, please let us know.
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THIS MONTH'S TOPICS:
- RETALIATORY ACTION FOR FILING EEO CLAIM
- WAIVER OF CLAIM MAY BE RETALIATORY
- INDEPENDENT CONTRACTOR V. EMPLOYEE
- TIP OF THE MONTH
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SAVE THE DATE!!!
14th ANNUAL EMPLOYMENT AND LABOR LAW SEMINAR – WEDNESDAY, MARCH 19, 2008
HOLIDAY INN -- DOWNTOWN, DULUTH
Thank you to the approximately 100 of you who were able to attend this year's seminar on March 21, 2007. We hope you found it interesting and informative, and appreciate all the valuable feedback from the post-seminar surveys.
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RETALIATORY ACTION FOR FILING EEO CLAIM
In Burlington Northern v. White, a 2006 U. S. Supreme Court decision, the Court decided that a plaintiff in a retaliation claim must establish: (i) engagement in protective conduct; (ii) a reasonable employee would have found the retaliatory action materially adverse; and (iii) the materially adverse action was causally linked to the protective conduct. Materially adverse does not have to involve a reduction in pay, benefits, or opportunity, but must be retaliatory action that would dissuade a reasonable employee from pursuing a discrimination claim. The Eighth Circuit Court of Appeals, which includes cases from Minnesota, had its first opportunity to apply Burlington Northern v. White in a case denying a claim of retaliation by an Assistant U. S. Attorney. The Court did, however, note that lack of supervision or mentoring, could support a claim, if the claimant's job performance and job advancement was affected by such action. The Court also commented that personality conflicts at work that generate antipathy and typical snubbing by supervisors and coworkers would generally not be sufficient, to show retaliation. Higgins v. Gonzales (Eighth Circuit 2007).
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WAIVER OF CLAIM MAY BE RETALIATORY
For years the EEOC has held that requiring an employee to waive his/her right to file an EEO claim in return for severance benefits is per se retaliatory. Although one Court of Appeals has disagreed with this position, other Courts have supported it. Therefore, employers should draft releases in severance situations so the former employee is waiving the right to recover monetary damages and waiving the right to file a discrimination claim in court. However, such releases should be silent and not attempt to prohibit the employee from filing an EEO claim or to participate in an administrative proceeding.
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INDEPENDENT CONTRACTOR V. EMPLOYEE
Employers, who have classified workers as independent contractors, should regularly test those workers in accordance with Internal Revenue Service Publication 15 available at www.irs.gov. The IRS for withholding and employment tax purposes will look at any:
- Behavior Control
– whether an employee controls the when and where of work as well as directing or controlling how work is completed.
Financial Control – whether a worker has expenses and the right to a profit or loss, and is available to other establishments.
Relationship of Parties – whether the worker performs a key part of the business.
None of these factors are controlling, but in many ways behavior control is the most important.
Wisconsin employers for employment tax purposes should also require that workers treated as independent contractors have an Employee Identification Number (EIN) that shows up on a written contract between the employer and the worker. Under Wisconsin law a contractor will be considered an employee for unemployment tax purposes, unless the contractor has an EIN or files a Form 1040, Schedule C. No one can control whether a person files a Schedule C, so the EIN mandate should be followed.
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TIP OF THE MONTH: Sexual harassment and other prohibited harassment claims continue to be common. Please remember to continue to post your harassment policy in your lunchroom or other place where you post required Federal and state employment notices, as well as including it in your Employee Handbook.
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Hanft Fride's business and trial lawyers are located at 1000 U.S. Bank Place, in Duluth Minnesota. Visit our website at www.hanftlaw.com. In addition to general information on the firm and our attorneys, you can find past issues of this newsletter. Keep checking back for new information, and let us know if there is anything you would like to see added to the site that would help you and your organization. Our employment lawyers include Richard Burns, Tom Torgerson and Rob Merritt.
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The information provided in this E-letter is general in nature and should not be used as a substitute for professional services and advice. The communication and receipt of this information is not intended to create an attorney-client relationship. Readers should consult with their legal counsel before taking any action on matters covered in this E-letter.
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To subscribe or unsubscribe to Employer E-Letter, e-mail your request to Richard R. Burns, rrb@hanftlaw.com or call 218.529.2433.
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Copyright 2007 by Hanft Fride, P.A. All rights reserved. Hanft Fride, A Professional Association, 1000 U.S. Bank Place, 130 W. Superior Street, Duluth, MN 55802. Phone 218.722.4766; fax 218.529.2401.
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