Spring 2008 SBH Quarterly Newsletter
PDF FormatFederal Courts
Independent contractors may be employees for union purposes.
The Ninth Circuit Court of Appeals recently addressed the question of whether an owner of a taxi service had to recognize and bargain with a union formed from his drivers. The case turned on the definition of “employees” under the National Labor Relations Act. The National Labor Relations Board (NLRB) had concluded the drivers were employees. The Ninth Circuit agreed, noting that substantial evidence supported the finding that the owner controlled the drivers to the extent that an agency relationship rather than an independent contractor relationship existed. The lease agreements identified the drivers as independent contractors and not employees. Drivers paid a flat lease to drive for the company, had no accountability for fees collected or tips made, and lacked any hours of work requirement. However, the key factor outweighing these facts was the owner's prohibition on the independent generation of business or pursuit of personal business opportunities. This and several other minor factors (performance-based lease amounts, advertisement on cabs, setting of rates) demonstrated a level of control by the owner that belied an independent contractor status. The court agreed the owner had to recognize and bargain with the union. NLRB v. Friendly Cab Company, 512 F3d 1090 (9th Cir 2008).
Court reaffirms that very little “evidence” is needed to get a trial on a harassment claim.
Ms. Davis, having been laid off in the second wave of a three-wave layoff, filed a claim for sex discrimination, retaliation and hostile work environment. Davis worked as an electrician at a college worksite. Initially, she was the only female employee on site. In support of her claims of discrimination, Davis alleged she had to work more often with a spray coating than male coworkers, received poorer work equipment and was excluded from a work trailer. The employer protested that tasks were assigned by skill level and when Davis had complained, it had moved her from the tasks she did not like. Indeed, after complaints, other female employees were moved to the worksite.
Although the evidence Ms. Davis offered appeared limited to her own affidavits, the court found sufficient circumstantial evidence to justify a trial. It cited the low standard Davis had to meet to allow her claims to go forward to trial. The lack of female coworkers or supervisors and the exclusion from the trailer appeared to be key facts relied on by the court. The court was not dissuaded by the fact that most of the evidence was Ms. Davis’s word. It appears the employer did a poor job of establishing prevention of discrimination in the workplace, such as policies, training and established complaint procedures. Notably, the supervisor often was stationed in the trailer and, by keeping Davis away, her avenue to complain of discrimination was cut off. Davis v Team Electric Co., __F3d__(9th Cir 2008).
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