Keynote: Attorney Cage Match - You Be the Judge

Transcription

1 THURSDAY 9:00 10:15 AM TRINITY 4, 5, 6, 7, 8 Keynote: Attorney Cage Match - You Be the Judge Moderator: Bryan Peña, VP, Contingent Workforce Strategies & Research, Staffing Industry Analysts, CCWP Panelists: Eric Rumbaugh, Partner, Michael Best & Partners William Hays Weissman, Shareholder, Littler Mendelson, P.C.

2 Attorney Cage Match - You Be the Judge

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4 Risk is often everywhere but hard to really see. Workers Comp Tort Liability Co-employment Exempt/Non-Exempt Intellectual Property FLSA

5 But What is it Really Like?

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7 You get to decide.

8 How this time will work Will Present 2-3 cases time permitting Each side will be either plaintiff attorney or defendant attorney Approximately 10 minutes each to present their facts Audience acts as panel of judges, and can ask questions of the parties Bryan Pena acts as Chief Judge At the end of the time the audience will vote, and Chief Judge will provide verdict Cases are adapted from actual cases. Attorneys will discuss the verdict in the RL version, and legal theory applied and answer questions

9 Lets get started!

10 Employee or Not? The Law: An individual who is (1) free from direction and control and (2) customarily engaged in an independently established trade, occupation, profession or business is self-employed

11 Gold v. Gelman The Players Gelman Group: International online expert network that connects clients in the market for expertise with experts in Gelman s network Vera Gold: An expert in online mapping, GPS-based navigation systems and wireless devices

12 The Key Facts Gold was terminated by a prior employer and filed for unemployment benefits Gelman found Gold s resume online and contacted her to be part of its expert network; Gold agreed Gold set her own hours, rate of pay, worked from home, had no obligation to accept assignments, was free to work for others, signed written agreement saying she is an IC, received no training, evaluations or instructions from Gelman Gold submitted online bio that Gelman posted on its website clients review her bio and if interested, Gelman notifies her that client will contact her Gold accepted four consultations over two months and charged $375/hour Gold reported this income on her unemployment claim form

13 What Happened? Gold applied for unemployment benefits; was initially denied. Gold appealed.

14 The Issue and Law Issue: Is Gold self-employed? Is she is ineligible for benefits? The Law: An individual who is (1) free from direction and control and (2) customarily engaged in an independently established trade, occupation, profession or business is self-employed,.and therefore ineligible for unemployment benefits

15 The Verdict

16 Employee or Not? The Law: An individual who is (1) free from direction and control and (2) customarily engaged in an independently established trade, occupation, profession or business is self-employed

17 Maas v. YoYoDyne Staffing, Inc. and Tristero Transportation, Inc. ISSUE: Are both the staffing supplier and its client employers for purposes of worker s compensation liability?

18 Maas v. YoYoDyne and Tristero The Players Oedipa Maas: A Contingent worker. Ms. Maas was placed by YoYoDyne at Tristero s workplace. YoYoDyne Staffing: A global staffing solutions company. Tristero Transportation. The world s leading alternate mail service.

19 The Key Facts At Tristero, Ms. Maas operated a mail sorting machine, and was injured while operating that machine. There were no supervisors or managers from YoYoDyne present at the Tristero worksite. Tristero s contract with YoYoDyne specifically provided, and YoYoDyne agreed, that Ms. Maas would be employed by YoYoDyne, and would not be employed by Tristero for any purposes. Tristero s contract with YoYoDyne specificlaly required YoYoDyne to purchase and provide worker s compensation claim against both YoYoDyne and Tristero. YoYoDyne concedes liability and has paid worker s compensation benefits to Ms. Maas. Tristero denies that it is Ms. Maas employer.

20 What Happened? Ms. Maas has applied for workers compensation benefits. YoYoDyne has conceded liability. Tristero denies liability. The hearing is on whether Ms. Maas workers compensation claim can proceed against YoYoDyne and Tristero, or just YoYoDyne.

21 The Verdict

22 But Wait!

23 Immune or Not? Ms. Maas files a tort negligence claim against Tristero, after Tristero argues that it is not Ms. Maas employer for worker s compensation purposes.

24 What Happened? Ms. Maas applied for workers compensation benefits. Tristero denied that is was Ms. Maas employer. She has now asked to file a tort negligence claim against Tristero. If granted, this will allow Ms. Maas to have a jury trial which could result in uncapped damages against Tristero.

25 The Issue and Law Issue: Is Tristero immune from liability? The Law: Where an employee s injury is compensable under the act, the compensation provided by the statute is the employee s exclusive remedy against his or her employer. Thus, an injured employee cannot maintain a tort action against his or her employer if the injury is compensable under the provisions of the act. As a general rule, a party to an action is estopped from assuming a position inconsistent with his or her assertion in a previous action, if his or her contention was successfully maintained.

26 The Verdict

27 Oh Snap!

28 McLaggen v. Clearwater & Corner Bus. Solutions, U.S.A., Inc. ISSUE: Were McLaggen and Cresswell intentionally misclassified as independent contractors, and are they entitled to damages for retaliation?

29 McLaggen v. Clearwater & Corner Bus. Solutions, U.S.A., Inc. The Players McLaggen and Cresswell : McLaggen and Cresswell worked at Clearwater & Corner Business Solutions (CCBS) for many years as independent contractors in the Marketing Communications Department CCBS: A global leader in imaging and process management.

30 The Key Facts McLaggen and Cresswell originally applied for full-time positions, but were told they were ineligible because they insisted on working part time hours. To keep working part time, McLaggen and Cresswell accepted jobs as independent contractors for CCBS. McLaggen and Cresswell sent invoices to CCBS for hours actually worked. As an independent contractor, McLaggen had responsibilities related to the production of marketing materials, and Cresswell was responsible for creating sales materials for use in the US market. Cresswell filed a request with the IRS to have her federal employment tax status evaluated in light of her work with CCBS.

31 What Happened? IRS determined that due to her responsibilities, Cresswell was not an independent contractor for CCBS for tax purposes and that CCBS owed employment tax on her wages. CCBS offered McLaggen and Cresswell full time positions. The parties negotiated the new employment terms, to include title, salary, benefits, and hours. McLaggen and Cresswell were represented by counsel during these negotiations. McLaggen and Cresswell believe they have been retaliated against. Specifically, they point to the fact that their hourly rates are 30% less than when they were independent contractors, their titles have changed, and they are asked to assist coworkers and work overtime.

32 The Issue McLaggen and Cresswel have now sued for benefits, claiming that since the IRS has already determined that they were misclassified and should have been employees, they are entitled to retroactive benefits for the period they were misclassified.

33 The Law If the plan gives the administrator or fiduciary discretionary authority to make eligibility determinations, we review its decisions under an abuse-of-discretion (or arbitrary and capricious) standard - Courts are to be guided by principles of trust law in evaluating the conclusions of Plan Administrators regarding ERISA benefit eligibility decision A court may not fashion a better contract for the parties than they themselves made.. Section 510 of ERISA says that it shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan.... A plaintiff must show that 1) she is a member of an ERISA plan, 2) she was qualified for the position, and 3) she was [retaliated against] under circumstances that provide some basis for believing that [her employer] intended to deprive her of benefits.

34 The Verdict

35 Whaaaaa?

36 Moral of the Story Sometimes the reality of legal risk can be arbitrary and unexpected. The best course of action is to be educated on the real risk that exist and be able to balance the realities of operating the business and the requirements of the stakeholders.

37 Questions? 37

38 Thanks!!!!

39 GIVE US YOUR FEEDBACK Keynote: Attorney Cage Match - You Be the Judge Tap the ipad screen as you exit to rate this session.