Despite working for an employer for 40+ hours a week, contract employees are not entitled to the same protections and benefits as full-time employees.
I recently worked on a case where we represented a woman who had been sexually harassed by a co-worker. We sued the company for sexual harassment, and they responded that she was not an employee, but an independent contractor. They produced documentation proving the independent contractor agreement between my client and the company.
It said that as an independent contractor, the company would not do tax withholdings on wages, would not provide employee benefits, and would not cover workers comp.
Why was this documentation so important to this case?There are three groups of employers who are protected in regards to sexual harassment, or certain accommodations such as disability status and religious affiliation.
- Full-time employees;
- Part-time employees;
- Temporary employees hired via a temp agency.
However, independent contractors are not protected in the same way because they are not employed by the company. There is a difference between working with a company and for for a company. It’s a subtle, but important, difference.
Sometimes it is can be contested whether an independent contractor worked as a true independent contractor or was treated as an employee. The Department of Labor has devised a test called the White Collar Test that looks at eight or ten factors of a person’s employment. It looks at how an employer controls the manner and methodology of work, such as does an employer require a company uniform, or do they set a required schedule the employee must follow? An independent contractor does not have to do these things, and can work wherever and whenever they want.
Unfortunately, my client was determined to be an independent contractor, and therefore not entitled to the same sexual harassment protections as if she had even been a temporary employee. The person accused of sexual harassment was given a slap on the wrist at work, and nothing else.
An interesting side note to this issue: while a contractor cannot sue if an employee harasses him or her, the reverse is not true. If an employee at a company is being harassed by the company’s independent contractor, and management does nothing about it when told about the problem, that employee has a right to sue.
For example, if the guy who fills the vending machines continually makes inappropriate remarks to the receptionist, and she tells her boss, who fails to respond, she can sue the employer. That’s because the contractor is contributing to a hostile work environment, which the employer is supposed to prevent.
If you have questions about sexual harassment, or believe you are being sexually harassed by a co-worker or boss, please contact the Cassis Law Office at (502) 736-8100.
Photo credit: Phil Whitehouse (Flickr, Creative Commons)