Hammerhead – About to get hammered

Sam Hammer just started Hammerhead construction. He used to work for another small construction company and then became independent contractor with HugeCo, a manufacturing company. A wonderful carpenter, great guy, good buddy, and too cheap to hire a lawyer before he started the business. He decided to do things just like HugeCo.

So when Hammerhead got its first good job, Sam brought on Allen, Alice, and Albert to help. He brought them onto the job as independent contractors, the same as he was when he was working for HugeCo. Allen was the lead carpenter, and Alice and Albert took their instructions from him or Sam. Alice and Albert were new to the carpentry business. Neither of them had their own business. Neither of them advertised their services.

Although Allen, Alice and Albert brought their own hand tools with them to work, Hammerhead Construction provided all the other tools. Hammerhead provided the plans. Sam and Allen told Alice and Albert what needed to be done, in what order the work needed to be done and how it was to be done.

Sam felt that he needed to develop a reputation as a good contractor, so he worked long hours. He worked Allen, Alice and Albert long hours as well. They all worked 70 hours that first week. Sam was paying Alice and Albert $10/hour, and at the end of the first week, he gave them both a check for $700 even.

Alice and Albert both said, “Where’s our overtime?!” Stunned, Sam replies, “But you are independent contractors, you don’t get overtime.”

“Sam,” says Alice, “my brother is a lawyer, and he said we aren’t independent contractors. We are employees, and employees who work overtime get paid time and a half for anything over 40 hours a workweek. You owe us both another $150 bucks!”

Sam calls a lawyer, explains the situation and asks, “Are they right?”

“Yes they are. You give most all of the tools they use, you tell them where to work, when to work, and how to work. You didn’t hire their businesses, they don’t have any. They don’t hold themselves out as being available to do any other jobs. They do the same thing you do, but under your direct supervision.”

“Alice and Albert both look like any other employee. The fact that you said they were independent contractors doesn’t make them contractors. It is what is actually happening that matters here. If it walks like a duck, looks like a duck and quacks like a duck, it is a duck. Alice and Allen are employees, and you’ve got to pay them overtime.”

“Why didn’t you call me before bringing them on board?”

Chuck from Watson Law, LLC

George and His Return to Work – Redux

Remember George? He works for HugeCo. He had to take a leave from work due to a slip and fall at home. His doctor said he could return to work. HugeCo said “not so fast”, and demanded that he undergo and Independent Medical Exam (IME) with a report that he could do 100% of his job duties before he came back.

George’s lawyer advised him, and HugeCo, that requiring an IME, when George’s doctor had already certified his return to work, violated the Family and Medical Leave Act.

HugeCo’s in house mouthpiece said “Aha, but the ADA says we can require an IME before George returns to work.” And the company is right (well, maybe). The ADA does allow for an IME when there is a legitimate reason to believe that an employee cannot do the duties of the job. The examination must be focused on the specific condition at issue. And, finally, the decision to do the examination must be consistent with a business necessity.

Whether HugeCo had a legitimate reason to believe that George couldn’t do his job will be based on the medical facts and the specifics of his job.

HugeCo had to tell the doctor doing the IME that he was to limit the examination to the condition at issue – here George’s back. The Doctor is not allowed to check George’s psych records or inquire into his eyesight, or other conditions that are unrelated to his back

Finally, HugeCo’s decision to have the IME conducted needs to be consistent with business necessity. A consistent policy related to the job must exist. Here is where George’s lawyer jumps back up. HugeCo has no written policy about return to work IMEs (or any other reason for an IME). George knew, in fact, that other warehouse workers had injured their backs (some far worse than George) and none had been required to undergo an IME to come back from an injury leave. HugeCo has trouble on its hands.

Chuck from Watson Law, LLC

George and his Return to Work.

Let me introduce George, an employee for many years at HugeCo. George’s doctor gave him a off-work slip due to the acute back spasm caused by a slip and fall at home. George clearly could not work at the time (after all he was on major drugs and could not move almost at all – not a good thing for a warehouse worker), but did not have a long-term, chronic back problem. George asked for and received FMLA leave. While on leave George called in and complied with HugeCo’s leave policies.

After a week, the spasm was gone, and the doctor gave George a Return to Work slip, and a medically supported statement that George could do his job. But HugeCo would not let him come back to work. Why? HugeCo said he needed to undergo an independent medical exam (IME) to show he was able to do 100% of his job duties. (George’s supervisor, Bruno, had other, more nefarious reasons; but more about Bruno later.)

Does George have to take part in the IME? Probably not!

When HugeCo demanded the IME it violated the Department of Labor rules governing FMLA leave. The FMLA regulations state that an employer may require that the employee give certification of the ability to return to his or her job, but the employer may NOT keep an employee off work to have its own doctor provide the certification.

The careful employer will let George come back to work with even an unsupported return to work slip. An aggressive employer will require a fully compliant certification. But an employer that wants its own doctor to certify, has stepped over the line (unless authorized by state law or the ADA, more on this later).

HugeCo has left itself open to a complaint that it is interfering with George’s FMLA rights. George may have a claim.

Chuck from Watson Law, LLC