In a case handled by Sherman & Howard’s Labor and Employment Department, the National Labor Relations Board (“NLRB”) returned to its traditional independent contractor test, reversing the Obama Board’s 2014 decision in FedEx Home Delivery, 361 NLRB 610, and finding the Dallas/Ft. Worth SuperShuttle franchisees to be independent contractors. The Board explained that the FedEx decision improperly minimized the consideration of whether alleged independent contractors had significant “entrepreneurial opportunity” for gain and loss. In addition, the Board clarified that regulatory requirements imposed on the SuperShuttle franchisees could not be considered “control” asserted by the alleged employer. The Board concluded that in light of the franchisees’ ownership and control over their vans, their near complete freedom to independently control their schedules and accept or reject work, the absence of supervision, and the franchisees’ significant entrepreneurial opportunity, they could not be considered employees covered by the National Labor Relations Act. In a strongly-worded dissent, Member McFerran quipped “calling the SuperShuttle drivers ‘entrepreneurs’ or ‘small business owners’ doesn’t make them any less employees.” We respectfully disagree with the dissent.
A federal District Court in Michigan recently found that a plaintiff had presented enough direct evidence of age discrimination to merit a trial. The plaintiff worked as a member of defendants’ kitchen staff for about two months. The day after his termination, plaintiff met with the company’s owner to discuss the situation further. Unbeknownst to the owner, the plaintiff recorded the conversation.
On the recording, the owner said the plaintiff had not been “fitting in” with the rest of the staff. At one point, plaintiff stated, “So you think it’s probably the age difference.” The owner responded, “I think that’s probably a big part of it, from day one.” The conversation continued in a similar fashion.
The plaintiff filed a Charge with the EEOC alleging age discrimination and eventually filed suit against his former employer and its owners. When confronted with the recorded conversation, the owner explained that he “was trying to soften the blow,” “thought it was the kind thing to do,” and “was just trying to make [the plaintiff] feel a little bit better” about the termination.
Lesson learned? While compassion may play an important role in the employee-separation process, employers have to pay attention to how that compassion is displayed. It isn’t “kind” to blame an employment decision on the employee’s age, race, sex, disability or any other protected characteristic; if anything, it is likely to seem unfair – both to the employee and to the court and jury.