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New interpretations of legal guidelines for the workplace

By Phillip Bantz
Dolan Media Newswires

COLUMBIA, S.C. — From cross-dressing office workers and litigious strippers to employees who can toke like Cheech and Chong, the challenges employers face navigating employment and labor law are anything but boring these days.

Lifestyle issues once taboo in the workplace are spilling out from behind closed doors and into the mainstream, and the law is responding in a perpetual game of chase.

Matt Korn, an associate at the Columbia, S.C., office of Fisher & Phillips, which typically represents employers, said transgender rights is among the emerging topics.

“One issue I think we’re going to see more and more of is clients with employees who show up to work on Monday as John Smith and on Tuesday they’re Jane Smith,” Korn said. “We’ve had clients who have had requests from their employees to use the other [gender’s] bathroom … In those situations, it’s really a risk assessment.”

And it puts employers in quite a pickle. Managers could refuse to accommodate the employee and possibly face a lawsuit. Or they could let John use the ladies’ facility, which might not sit well with the existing occupants.

“It definitely could raise harassment issues, allowing a male in the female bathroom,” said Korn.

The safest bet for the employer would be to take John aside and tell him, being as diplomatic as possible, that he’s not to venture into the women’s restroom. John’s manager also could most likely get away with telling him not to wear a dress to work again.

“There’s no federal prohibition against discrimination for sexual orientation. A lot of people don’t know that,” said Daniel Bowling, who teaches labor and employment law at Duke University School of Law in Durham. “There are no rights for a man to declare himself a woman and use the women’s restroom under federal law.”

But, as with many aspects of labor law, that may soon change.

Guidelines to share with employers

When an employee walks into a supervisor’s office, closes the door and complains about being harassed, what happens next could make the difference between being slapped with a lawsuit or successfully resolving the situation.

Mason Alexander, managing partner at Fisher & Phillips’ Charlotte, N.C. office who advises employers on how to properly investigate allegations of workplace harassment, offers the following tips:

  • Get as much detail as possible. Interview the worker making the complaint then take steps to ensure that the inappropriate behavior ceases immediately until the situation is sorted out. “Most often you are going to bring the accused in and suspend them,” Alexander said, noting that salaried employees should be suspended with pay during the inquiry.
  • Do some basic detective work. Review security footage or check work schedules to confirm that the accuser and the accused were both in the building when the alleged incident took place.
  • Get it in writing. The supervisor would be well advised to write a statement based on the information provided by the complainant and have the worker review and make any changes to the statement before approving it. “A lot of times [the complainant] will come in and talk for 45 minutes but when they’re asked to write their own statement they’ll give you a paragraph,” Alexander said.
  • Be transparent. “Some companies are reluctant to tell the accused who has made the complaint. My advice is to tell them,” Alexander said, adding that it’s always helpful to hear the other side of the story.
  • Conclude every investigation with a report. The report should include what the supervisor learned from the involved parties, any witnesses and the supervisor’s analysis of the situation.

The Employment Non-Discrimination Act, a federal bill that has been repeatedly introduced to Congress since the mid-1990s, would allow employees to sue for discrimination based on sexual orientation.

“If that were added it would put employers in a much more complicated position,” said Jeffrey Hirsch, a labor and employment law professor at the University of North Carolina School of Law in Chapel Hill.

‘Independent contractor nation’

Among the most important and complex prevailing issues for labor lawyers and their clients is the question of what it means to be an independent contractor as opposed to a regular employee.

Strippers have been at the forefront of the debate, convincing courts throughout the country that they qualify as employees and are entitled to protections under the National Labor Relations Act.

Several suits involving exotic dancers are unfolding now in the Palmetto State.

“Strip clubs are getting hit with a lot of lawsuits by dancers saying that they were incorrectly classified as independent contractors. And the dancers are getting the better end of the bargain,” said George Reeves, also an associate at Fisher & Phillips in Columbia.

While a list of tests and criteria, some of which are in conflict with one another, can be used to determine whether a worker is an independent contractor, Reeves said most courts have focused on the level of control that an employer exerts over that worker.

“The more control the more likely someone is an independent contractor,” he said. “Strip clubs were literally controlling everything from top to bottom … everything from having to check in with the club mom when the dancers first arrive at the club to restrictions on what type of clothing they can wear. There were even rules about glitter.”

Another commonly used test weighs how instrumental a worker is to the business, according to Reeves. In other words, he said, “How much skin does the worker have in the game? If they can suffer a loss from it, then it’s more likely that they are an independent contractor.”

Applying this test to strippers would, in most instances, lead to the conclusion that they are independent contractors, though that is not how the majority of courts have come down on the issue.

“This is one of the gray areas,” Reeves said. “It shows the conflict between all the various tests that you have to apply. But control really seems to be the key.”

Bowling, who teaches at Duke Law School, noted that he’s hearing more talk of expanding the National Labor Relations Act to include independent contractors, a move that could change the game – much like the passage of the Employment Non-Discrimination Act would shake things up in the discrimination arena.

“The independent contractor issue is huge on a variety of fronts,” he said. “In a lot of ways, we’ve become an independent contractor nation. It seems like I hardly know anybody anymore who has a real fulltime job.”

Hirsch said employers have “abused the heck out of” the murky definition of an independent contractor, using ambiguities in the law to misclassify workers and cheat them out of benefits and protections given to employees.

But he indicated that the balance of power could tip in the other direction, especially in light of the National Labor Relations Board ruling in March that a group of college football players have a legal right to unionize.

“I honestly expect to see a college athlete asking for minimum wage,” he said.

One toke over the line

Meanwhile, as more states decriminalize marijuana, employment lawyers are fielding questions from clients who are curious about whether they need to relax their company drug policies.

The concise answer is no.

“Even though recreational marijuana use is legal in some states, it’s still not legal under federal law,” said Korn of Fisher & Phillips. That fact also has led courts to uphold firings based on an employee’s use of medical marijuana.

“Still, you do have to be careful because if they’re using medical marijuana chances are they have a medical condition that you would have to accommodate under the Americans with Disabilities Act,” he added. “It’s a little trickier.”

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