Employment Relationship and Discrimination

“Employment Relationship and Discrimination” Please respond to the following:

Contrast the primary differences between independent contractors, temporary employees and volunteers. Then, examine two (2) ways in which each role differs from that of an employee. Justify your response.

Independent Contractors – An independent contractor is one who contracts to do work or perform services for another person or company according to his or her own processes and methods. The key to being an independent contractor is that independent contractors are not subject to another’s control except for what is outlined in a mutually binding agreement for a specified job.

Two ways in which an independent contractor differs from the role of an employee –

Temporary Employees – A temporary employee is an individual who accepts a work assignment generally lasting one year or less. Temps are typically hired to cover for absent employees (such as those employees that are on maternity or disability leave) are to help maintain productivity when the businesses volume increases. Most employers hire temporary employees to cover a specific business purpose while avoiding the cost of hiring regular employees.

• Independent contractors set his or her own hours, employees work the hours set by their employer.
• Independent contractors are paid according to the terms of the contract; they will not receive additional compensation for overtime hours worked. An employee, is covered by federal and state wage and hour laws (FLSA) such as minimum wage and overtime laws.

Two ways in which an independent contractor differs from the role of an employee –

Volunteers– A volunteer is an individual who chooses to act in recognition of need, with an attitude of social responsibility and without the concern of monetary profit, always going beyond one’s basic obligations.

• Being a temporary employee you do not have the job security, long-term benefits and financial stability that comes with being a permanent employee.
• Temporary employees also have the flexibility of changing job roles and career industries. Temp assignments are given on an as needed bases. There could be instances where a temp employee could work in financial services on a 3-month assignment.

Two ways in which an independent contractor differs from the role of an employee –

From the e-Activity, select two (2) employment discrimination laws, and then provide two (2) disparate treatment case using the same discrimination law. Review only the facts of the case, the legal issues relating to the disparate treatment, and the court’s decision. Next, outline the steps the employer could have taken initially to prevent the discrimination in question. Justify your response.

• The primary difference between a volunteer and an employee is that volunteers are not given direct compensation for the time given to the organization, their time is given solely to help them satisfy their hunger for social responsibility. An employee renders services with the expectations of receiving monetary compensation.
• Volunteers are not bound to a clearly defined ‘job’, they are given learning opportunities and options. Employees are bound to a clearly defined job description which outlines daily duties that the employer is expecting to be executed by the employee.

Retaliation

All laws enforced make it illegal to fire, demote, harass, or otherwise “retaliate” against applicants or employees because they made an unfavorable move against the organization. In most instances retaliation is seen when an applicant or employee files a charge of discrimination, complained to their employer about discrimination on the job or because they have chosen to participate in an employment discrimination investigation or lawsuit.

Case #1

Burlington Northern and Santa Fe Railway Co. v. White, 126 S.Ct. 2405 (2006)

Case Facts: A female employee was hired as a forklift operator, noting she was the only female at Burlington Northern’s railroad site. Her supervisor would consistently provide unwelcomed comments regarding how women should not be working at the railroad. He would also make deeming remarks about women in front of white male colleagues. She finally decided to report her supervisor and her was consequently suspended for 10 days. However, she was told that a more senior male employee should be operating forklifts and was removed from her forklift duties and assigned more physically strenuous labor tasks. She then filed several complaints, including EEOC and a grievance with her HR department. She was suspended without pay including during a company paid holiday. Her employment was reinstated but then suspended again for insubornation. She then filed a Title VII lawsuit alleging she was discriminated against for reporting her supervisor.

Court Outcome: The jury found for the employee that both claims and the Sixth Circuit Court of Appeals affirmed. She also received back pay for her suspension but the company had to pay additional monies for the financial hardship created during that unlawful suspension.

Steps to Prevent:

Case #2

• Performed a more effective investigation of the employee’s complaints
• Institute a management training program so that managers know how to carry the integrity of the company

Crawford v. Metro. Gov’t of Nashville & Davidson Cty., 129 S. Ct. 846 (2009)

Case Facts: Female employee participated in a company initiated investigation regarding the sexual harassment from the employee relations director. She expressed several inappropriate acts and advances that the employee relations made towards her. She also expressed that she had not made a formal complaint because the two employees who did so prior to her were immediately investigated and discharged on other grounds. A few months later she was accused of embezzlement and drug use and was terminated. She filed suit alleging that her termination was in retaliation for her providing information during the employer’s investigation of harassment allegations.

Court Outcome: The Supreme Court (9-0) reversed the initial dismissal of her case and held that her statements during the internal investigation described and ostensibly disapproved sexually obnoxious behavior by a fellow employee and were, thus covered by the opposition clause of Title VII’s prohibition against retaliation. According to the Court: There is, then, no reason to doubt that a person can ‘oppose’ by responding to someone else’s question just as surely as by provoking the discussion, and nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question.

Steps to Prevent:

Pregnancy Discrimination

• After having 3 individual woman complaining of sexual harassment they should have discharged the employee causing the violations. Not framing innocent employees to eliminate the complaints.
• Employ only those individuals who carries a strong work ethic and will respect all employees.

Pregnancy discrimination involves treating a woman, either applicant or current employee in an unfavorable manner because of pregnancy, childbirth, or any other medical conditions related to pregnancy or childbirth. This includes any aspect of employment, including, hiring, firing, pay, job duties, promotions, layoffs, training, benefits, such as leave and health insurance, and any other term or condition of employment with the organization.

Case #1

YOUNG v. UNITED PARCEL SERVICE, INC.

Case Facts: Part-time UPS female driver picking up shipments, became pregnant through in vitro fertilization. She was instructed by a medical professional not to lift over 20 pounds. When she returned to work she advised UPS of the medical professional advice and ask to be put on light duty. Instead of complying UPS declined and placed her on unpaid, extended leave, causing her to lose her medical insurance.

Court Outcome: After 2 dismissals, the Supreme court took up the case and they resolved a question left unclear by the Pregnancy Discrimination Act of 1978. In rule 6-3 ruling, the justices found that employers can no longer use costs as an excuse to deny pregnant worker the same accommodations already provided to workers who are injured on the job.

Steps to Prevent:

Case #2

• The company could have agreed to give her a less physically demanding route. They could have put her strictly on a parcel route or in an open administrative role.
• The should have a different employee clause for part-time employees in regards to pregnancy.

EEOC v. WalMart CIV 94-465 TUC WDB

Case facts: A former Wal-Mart employee filed a complaint with EEOC after she was told by her supervisor to “come back after she had the baby”. At the time not knowing it was against the law until reading an article in a magazine. A Regional Attorney for the Phoenix EEOC district office stated that sometimes employers don’t take pregnancy discrimination claims as serious as others. The Regional Attorney lauded the settlement.

Court Outcome: Wal-Mart settled with EEOC. The employee then sued for punitive damages. After several back and forth actions the jury was told that Wal-Mart fabricated a number of facts during the investigations and initial trial.

Steps to Prevent:

References

• Wal-Mart should ensure that all recruiting and screening process go through the human resource department. This will ensure properly trained employees will not express verbally incriminating statements.
• Providing all employees with decision making authority with labor laws and violations on an evolving bases.

Being an Independent Contractor vs. Employee – FindLaw. (n.d.). Retrieved July 14, 2016, from http://employment.findlaw.com/hiring-process/being-an-independent-contractor-vs-employee.html

Discrimination by Type. (n.d.). Retrieved July 17, 2016, from https://www.eeoc.gov/laws/types/

Tamayo, W. R. (2009, October). Editorial. RECENT RETALIATION CASES IN FEDERAL EMPLOYMENT DISCRIMINATION LAW, 13. Retrieved from http://www.americanbar.org/content/dam/aba/administrative/labor_law/meetings/2009/ac2009/044.authcheckdam.pdf

U.S. Department of Labor: Pay and Benefits – Job Opportunities. (n.d.). Retrieved July 14, 2016, from https://www.dol.gov/oasam/doljobs/tempemployees.htm

WAL-MART TO PAY $220,000 FOR REJECTING PREGNANT APPLICANT, IN EEOC SETTLEMENT. (n.d.). Retrieved July 17, 2016, from https://www.eeoc.gov/eeoc/newsroom/release/12-23-02.cfm

Zillman, C. (2015). UPS loses Supreme Court pregnancy discrimination case. Retrieved July 17, 2016, from http://fortune.com/2015/03/25/ups-pregnancy-discrimination/