Washington Court Holds Employers Can Retaliate Against Indepedent Contractors

An independent contractor truck driver named Larry Currier heard another driver “yell ... at a Latino driver ... ‘[h]ey, f**ing Mexican, you know why you have to go to Portland and I don’t? Because f**ing Mexicans are good at crossing borders.’” Currier also reports previously having heard other racially motivated slurs and comments directed at a number of minorities who work for the same trucking company. The truck driver who overheard the racial slurs reported them to NSI’s quality assurance manager.

Two days later NSI terminated his contract.

He subsequently filed suit against NSI for retaliation under the Washington Stare Law Against Discrimination ("WLAD"), asserting his contract was terminated because he had reported discriminatory conduct.

In its defense, Northland Services Inc. ("NSI") argued that, "as an independent contractor, [Currier] ... was not an “employee” within the meaning of the WLAD and that it had "terminated ... [the contractor’s] contract because of poor performance and disruptive behavior ... [and therefore did not fire the contractor for discriminatory behavior].”

The Washington Court of Appeals, Division One, however, found that the WLAD applies to this case despite the fact that Currier was not an employee of NSI. In so doing, the Court upheld a trial court decision that NSI was liable for the retaliatory discharge of the independent contractor under the WLAD. The decision noted that the WLAD was enacted by the state legislature to “eliminate and prevent discrimination.” “The WLAD ... extends broad protections to ‘any person’ engaging in statutorily protected activity from retaliation by an employer or ‘other person.’”

The court noted that the Washington Supreme Court had previously held in Marquis v. City of Spokane that “under the broad protection [of the WLAD] ... an independent contractor may bring an action for discrimination in the making or performance of a contract for personal services where the alleged discrimination is based on sex, race, creed, color, national origin or disability.” The court also stated that “Washington cases have ... held that a plaintiff need not prove the conduct opposed of was in fact discriminatory but need show only that he or she reasonably believe it was discriminatory.”

The court stated that it did “not find credible the claim that ... [the contractor’s complaint to NSI] had no effect on the decision to terminate ... [the contractor’s] contract.” “Substantial evidence supports the court’s conclusion that ... [the contractor’s] complaint ‘tipped the scales toward termination.’”

Please Note: This Blog is made available by the lawyer publisher for educational purposes only as well as to give information and a general understanding of the law, not to provide specific legal advice. By using this Blog site you understand that there is no attorney client relationship between you and the Law Office of Elizabeth Van Moppes. The Law Office of Elizabeth Van Moppes is not in control of the linked sites and is not responsible for the contents of any linked site. This Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Elizabeth Van Moppes is licensed to practice law in the State of Washington only.

Illegal Interview Questions

Frequently, I hear from clients on the topic of interviewing. Specifically, what can be asked and what can't be asked of an applicant. As much as you may want to know if an applicant has children, and thus there is an allegedly higher possibility of missing work when the kids are sick, or if she owns her home, which means that she's not very likely to move away, you cannot ask these questions.
Here are a few others to avoid:

• Are you married?
• What does your spouse do for a living?
• Do you have plans to get pregnant in the future?
• Have you ever taken a leave of absence from a job?
• Do you go to church?
• Will you have to hire a babysitter if you get this job?
• From what country does your family originate?
• What year did you graduate from school?
• How will you get yourself to work?

Some other guidelines:

If the job requires occasional overtime, you may ask the applicant if he is available and how much advance notice he needs to work extra hours.

It's permissible to ask him if he speaks a foreign language, as long as you do not inquire if he is a native speaker.

If the job involves overnight travel, you may ask the candidate if she is able to leave town and again, how much notice she will need.

You may ask an applicant if she owns a car and has insurance only if driving her own vehicle while on company time is part of the job. Otherwise, questions about transportation are limited to asking if she has reliable transportation to get to work. If she considers the bus, her bicycle, or a neighbor willing to give her a ride to work reliable transportation, then this is reliable transportation.

Additionally, you may not ask an applicant if he has a disability. You may (and should) ask if he is able to perform the job — every applicant should be asked this. For example, you could say, “This job requires you to stand on your feet and walk without assistance for two hours before taking a break. Are you able to do this?”

During an interview, a job seeker may voluntarily bring up something that falls under the category of questions that you should not ask. When this happens, change the subject quickly and do not write the information down in your interview notes. This is for your own protection.  If, at a later date, someone accuses you of not hiring them because they have four children, and your interview notes indicate that they have four kids, you may have a hard time proving your contrary argument if the candidate otherwise meets the criteria for the job.

Please Note: This Blog is made available by the lawyer publisher for educational purposes only as well as to give information and a general understanding of the law, not to provide specific legal advice. By using this Blog site you understand that there is no attorney client relationship between you and the Law Office of Elizabeth Van Moppes. The Law Office of Elizabeth Van Moppes is not in control of the linked sites and is not responsible for the contents of any linked site. This Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Elizabeth Van Moppes is licensed to practice law in the State of Washington only.

Smart Management Article Published In Yarn Market News

I’m excited to say that industry magazine, Yarn Market News, published my article on employee handbooks and policies in the Smart Management column of their January 2011 issue. The article is accessible only to subscribers to the magazine but I’m re-publishing excerpts of it here:

You were sitting in your favorite coffee shop, dreaming of turning your passion into a business. You decided to open a yarn shop, a place where people who shared your love of knitting could gather. Your shop would be a part of the community, just like that coffee shop. You would create a place with a creative and unique ambiance. You dreamed of finding the perfect location, the yarn you would carry, the classes you would offer, and the displays that would set your shop apart.

I would lay odds that you never imagined that your dream would also include the amount of personnel management that it does. If you are lucky enough to be like Lauren Lindeman, of So Much Yarn in Seattle, most of your employees have been good fits with your shop. Lindeman says that she usually knows her employees in some other capacity before they are hired on. She describes her shop as “small enough that we are like a family at home where everyone knows the rules.” Still, Lindeman feels that having written policies would help with the smooth operation of her shop and that this would save her time in the long run. Also, as an employer, you want to have some control over how the job is performed and how an employee conducts herself. In the absence of written policies, the employment relationship is often an improvisation. Essentially, you make up your policies as situations arise, or, more likely, after they have arisen.

For these reasons, I encourage clients to be proactive and do the minimal work involved in putting together a few key documents before they need them. The most important of these documents is an employment handbook. When I use the term “handbook” I sometimes get resistance. Many employers, especially in a cottage industry, do not want to “corporatize” their workplace. They feel a handbook is part of a workplace culture that they want to avoid. Do not avoid it simply because you do not like what it connotes. Instead have policies that are in tune with your workplace culture.

I work with my clients to create handbooks that are personal to their workplace. It is important that their policies reflect their approach to managing employees. Together we consider the practical implications of each policy. We also discuss the federal and state laws that are applicable to their business.

One of the problems with a one size fits all template that you might find online is that it is not state specific nor is it necessarily appropriate for your business. I recommend to my clients that they find basic policies online but spend the extra funds to have an attorney spend an hour or two tailor them. Be certain he or she is an employment attorney who is fully versed in the state laws that are pertinent to you. Every state has its own workplace laws and many of these are only applicable to your business if you have a specific number of employees.

Managing employees seems like a secondary priority when you are focused on running your business. But when the first employee issue happens, and it will, you may find that it could have been avoided by written policies. The following policies are among the most important to include.

Disclaimer. One danger of written employment policies is that your employees can “reasonably rely” on promises you make. A court can then find that your handbook is a contract with your employees. For this reason, expressly state that your handbook is not a contract and does not constitute a specific promise in any specific circumstance. Also leave yourself some “wiggle room.” Always give yourself the right to apply your policies as you see fit.

Code of Conduct. I recommend having a code of conduct policy. It can be a simple expectation of common sense, honesty and respect. Or it can be a detailed list of prohibited conduct like theft, workplace violence, and harassment. Lindeman says that the primary employee issue she has come up against is employee attitude. For Lauren, I would recommend a clear policy on the expected demeanor and deportment of her employees. No matter how you approach it, leave yourself the discretion to address any issue that might arise; you cannot anticipate everything so give yourself the flexibility to decide what discipline may be necessary in every situation.

Anti-Harassment and Anti-Discrimination. An employer who exercises “reasonable care” to avoid harassment and provides employees with ways to address harassment has an affirmative defense when a complaining employee fails to take advantage of the employer’s safeguards. A written policy stating how seriously you take harassment is an important part of establishing that defense and your workplace culture. Include the email address and cell phone number of at least one senior manager to make it as easy as possible for an employee to make their complaint.

Whichever policies you decide are most appropriate for your shop, be certain to give yourself the right to change them if and when you see fit. You will find that a good handbook gives you some “authority” when you sit down with the employee who does need performance coaching.
Simultaneously, a handbook gives your employees a greater sense of security and professionalism. Finally, it allows you to spend less time answering questions and explaining yourself, and more time doing what you love most, running your business.

 

Please Note: This Blog is made available by the lawyer publisher for educational purposes only as well as to give information and a general understanding of the law, not to provide specific legal advice. By using this Blog site you understand that there is no attorney client relationship between you and the Law Office of Elizabeth Van Moppes. The Law Office of Elizabeth Van Moppes is not in control of the linked sites and is not responsible for the contents of any linked site. This Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Elizabeth Van Moppes is licensed to practice law in the State of Washington only.

Disability Accommodation No Longer Medical Necessity in Washington State

In a decision last week, Johnson v. Chevron, the Washington State Court of Appeals held that an employee was not required to prove that his disability accommodation was “medically necessary” to enable him to perfrom his job. Johnson had sued the employer, asserting state law claims for race discrimination (disparate treatment) and disability discrimination (disparate treatment and failure to reasonably accommodate). The trial court granted summary judgment in the employer’s favor on Johnson’s accommodation claim, and the employer prevailed after a jury trial on the remaining claims.

The Appeals Court reversed concluding that: 1) “[t]he evidence was sufficient for a jury to find either that Johnson’s impairment had a substantially limiting effect on his ability to perform his job, or that the evidence, including medical documentation, established a reasonable likelihood that engaging in job functions without accommodation would aggravate the impairment to the extent that it would become substantially limiting[;]” and 2) the trial court had erred when it instructed the jury that Johnson was required to produce comparator evidence in support of his disparate treatment claims.
Importantly, the Court of Appeals rejected the proposition that Johnson was required to show that accommodation was “medically necessary” to enable him to perform his job. The Appeals Court ruling states that the 2007 statutory changes, which retroactively revised the Washington Law Against Discrimination’s definition of “disability” for accommodation purposes supersede, the “common law definitions” used in earlier WA disability case law, and that:

“‘Medical necessity’ is no longer the sole basis for a right to accommodation. Under the new statute, either the impairment must be the source of a substantial limitation or there must be medical documentation indicating a reasonable likelihood that engaging in the job duties without accommodation ‘would aggravate the impairment to the extent that it would create a substantially limiting effect.’”

This decision runs afoul of earlier Washington case law including Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 194 (2001) and Pulcino v v. Federal Express Corp., 141 Wn.2d 629, 640 (2000). I suspect this case will be appealed by Chevron to our State Supreme Court. For the full decision, see: http://case.lawmemo.com/wa/johnson.pdf .

 

Please Note: This Blog is made available by the lawyer publisher for educational purposes only as well as to give information and a general understanding of the law, not to provide specific legal advice. By using this Blog site you understand that there is no attorney client relationship between you and the Law Office of Elizabeth Van Moppes. The Law Office of Elizabeth Van Moppes is not in control of the linked sites and is not responsible for the contents of any linked site. This Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Elizabeth Van Moppes is licensed to practice law in the State of Washington only.