Independent Contractor or Employee?
Independent contractors may not be on the regular pay-roll, but even so they could be entitled to the same protection under law as employees. And as two recent rulings demonstrate, they also may be successful in pursuing claims of harassment or discrimination.
Salamon v. Our Lady of Victory Hospital
Barbara Salamon was a gastroenterologist and internist associated with Our Lady of Victory Hospital in upstate New York. According to Salamon, one of the hospital physicians sexually harassed her. After she complained, she began to receive negative performance reviews. Administrative scrutiny into her practice increased even though "her patient treatment was satisfactory." Eventually Salamon was ordered to undergo a reeducation program. Her professional reputation was damaged and although she applied for work with other employers, she received no offers.
Salamon brought suit against Our Lady of Victory under Title VII of the Civil Rights Act of 1964, which prohibits discrimination in the workplace. She filed first with the Equal Employment Opportunity Commission (EEOC) and then with the federal district court. Both dismissed her complaint on the basis that she was an independent contractor.
The Second Circuit, however, reversed the decision and allowed the case to proceed. According to the court, although Salamon was not technically an employee, her relationship with the hospital was such that she could be considered one under Title VII.
Hoag v Brown
The New Jersey Department of Corrections (DOC) contracted Correctional Medical Services (CMS) to provide medical service to inmates. Angela Hoag, a social worker, was hired by CMS and assigned to the Southern State Correctional Facility. Here, Hoag alleged, a correctional officer subjected her repeatedly to "sexual and ethnically harassing and abusive treatment," and even hit her. Hoag brought a lawsuit against DOC under the NJ Law Against Discrimination (LAD), alleging a hostile work environment. The court dismissed the case, ruling that Hoag did not have an employment relationship with DOC. But the appeals court, however, while not disputing that Hoag was an independent contractor, reasoned that "an employee may be considered an employee for one purpose and an independent contractor for another", and permitted the claim to go forward.
Implications for Employers
In light of Salamon and Hoag, employers should remember that independent contractors may be protected by the same laws that cover regular employees. Prudent organizations will ensure that all employees and independent contractors are treated equally and provided similar legal protections. For more information on this issue, contact Extensis Human Resources at 888.473.6398 or hr@extensisnj.com.