Hi. My name is Chip Clark, and I am a partner at Goodin Abernathy, where I focus primarily on the rights of employees.
On June 15, 2020, the United States Supreme Court issued its landmark decision in the case of Bostock v. Clayton County, holding that federal law prohibits employment discrimination against LGBTQ workers.
Interestingly, conservative Justice, Neil M. Gorsuch, wrote for the majority in the 6-to-3 ruling, stating:
“An employer who fires an individual merely for being gay or transgender defies the law.”
The case concerned Title VII of the Civil Rights Act of 1964, which bars employment discrimination based on race, religion, national origin and sex. The question for the justices was whether that last prohibition — discrimination “because of sex”— applies to many millions of gay and transgender workers.
Justice Gorsuch wrote that it did.
“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex,”
Gorsuch goes on to say,
“It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
The court considered two sets of cases. The first concerned a pair of lawsuits from gay men who said they were fired because of their sexual orientation: Bostock v. Clayton County, Ga., No. 17-1618, and Altitude Express Inc. v. Zarda, No. 17-1623. The second was based on gender identity. In that case, Aimee Stephens, was a funeral director working near Detroit when she was fired in 2013 after announcing she would begin living as a woman. Sadly, Aimee died in May at the age of 59, not living to see her heroic contribution to this landmark decision. Her willingness to stand up to her employer now makes it it illegal for employers to terminate an employee based on gender identity.
In 27 states, there are no explicit statewide laws protecting people from discrimination on the basis of sexual orientation or gender identity in employment, housing and public accommodations, according to Freedom For All Americans, a bipartisan campaign to protect LGBTQ people from discrimination. An employee in one of these states conceivably could be fired for being gay or transgender – and would have no guaranteed rights against it.
In 21 other states, plus the District of Columbia, employees had full protection from discrimination on the basis of sexual orientation and gender identity in employment, housing and public accommodation.
There are 8.1 million LGBTQ workers ages 16 and older in the USA, according to the institute. About 3.9 million of those work in those 27 states.
What About Discrimination in Small Businesses with Fewer than 15 Employees?
Unfortunately, Title VII of the Civil Rights Act only prohibits employment discrimination by employers with 15 or more employees.
Conceivably, a business with fewer than 15 employees in certain parts of Indiana could still legally fire somebody on the basis of sexual orientation or gender identity, unless there is a city or county ordinance prohibiting such discrimination.
Here, in the City of Indianapolis, we have had an ordinance that prohibits such discrimination since 2005. Other Indiana communities have laws to protect against discrimination based on sexual orientation, but not gender identity, so there still remains a patchwork of laws if your employer has fewer than 15 employees.
What Should Workers Do If They Are Fired Based on Sexual Orientation or Gender Identity?
If you’re fired on the basis of sexual orientation or gender identity, the first call you should make is to an attorney who knows and understands this area of the law. We can assist you with filing a charge of discrimination with the U.S. Equal Employment Opportunity Commission or the local agency that enforces state or local anti-discrimination laws. This is the first step in filing a lawsuit in Federal or State Court against an employer who discriminates.
If you have questions about your rights as a member of the LGBTQ community, please call me for free, no obligation, consultation.
Whether you are classified as an employee or a sub-contractor may have significant legal and tax obligations. Many people don’t realize that there’s a difference between employees and sub-contractors in Indiana. However, sub-contractors or independent contractors as they are often referred to, don’t receive the same legal protections from the government and don’t have the same rights in the event that you are not paid for your work. Whether you’re an employee or a sub-contractor, you need to spend some time studying the rules and regulations regarding your position and become aware of your rights. If you’re a business owner, it’s even more crucial to distinguish between the two because you have some tax liabilities and obligations.
The Difference Between Employees and Sub-Contractors
Both employees and independent-contractors provide services to you and both get paid for their services. That’s the only commonality between the two types of associates. The IRS states that you can distinguish between employees and independent contractors based on three different categories:
Behavioral Control – Who determines how much control you have over how the job is done. Is it you or is it your boss? Does the employer provide instructions, methodology, training in that methodology, and directions on how and when to carry out the job. If so, this looks and smells like an employer/employee relationship. However, if you are independent, can control the scope of your own work, then your job has the characteristics of an independent contractor.
Financial Control – Who controls how you are paid? Do you bid for the work and then submit a bill or invoice? Or, are you paid an hourly wage? In some industries it may be more difficult to distinguish between independent contractors and employees. Who controls how and when the worker is paid, how they’re reimbursed for equipment used and services rendered, and who bears the profits and loss, etc. An employee can fully expect the employer to provide all necessary tools and equipment to perform their job, and to reimburse them for wear and tear of the equipment they might bring to the job. For example, an employee drives to different locations in their personal car to perform their job might expect to be reimbursed by the employer for the fuel, maintenance and repairs. However, and independent contractor is considered self-employed and must pay all of these expenses out of their pocket. These expenses aren’t considered the business owner’s concern. Think of an independent contractor as a small business owner.
Relationship between the Parties – The most significant difference between an employee and an independent contractor is their relationship with the employer. Subcontractors should have written contracts for every job they do or for a fixed duration. Employees, on the other hand, typically do not have contracts. They are employed “at-will” but they receive regular pay checks, and have taxes deducted from their pay. Employees also may have benefits associated with their employment such as health insurance, paid time off, and reimbursements for expenses
Why Is the Classification Between Employee & Independent Contractor Important?
This classification is very important because it impacts how you file your taxes. Here’s a brief description of your obligations based on whether you’re an employer, employee or a sub-contractor:
Employee – If you’re an employee, your employer is responsible for paying your social security and employment tax obligations by withholding the amount from your wages or salary. In return, you won’t need to concern yourself about the obligatory payments to the government.
Independent Contractor – If you’re a contractor, you’re responsible for your own self-employment taxes, which must be paid quarterly.
Employer – As an employer, the distinction is very important because you’ll need to pay the taxes, social security, and insurance on your employee’s behalf, and you will issue them a Form W-2 at the end of each year. You can deduct the needed amount from your employee’s salary and compensation. You will also have to pay state taxes and federal unemployment taxes on behalf of your employees. If you have independent contractors working for you, you are not required to withhold payroll taxes, and you will issue a Form 1099 at the end of the year.
Because it seems simpler to hire independent contractors, employers often misclassify their employees as such in an effort to avoid paying payroll taxes, etc. If you are found to be misclassifying your employees as independent contractors, you may be subject to fines and penalties issue by the US or Indiana Department of Labor.
Reporting the Earnings of Employees & Independent Contractors
As a business owner, you need to report every employee and independent contractor you have on hand. You also need to make sure you have classified them correctly. The Department of Labor is very stringent on the difference between an independent contractor and an employee. In fact, they have cracked down on entire industries that try to misclassify employees as independent contractors. You are also required to pay employees overtime for every hour over 40 hours in a given week. Overtime is 1.5 times the amount of your regular hourly rate. This is another reason why employers seek to classify their workers as independent contractors. That is, they are trying to avoid the overtime requirements of the Fair Labor Standards Act.
What Should You Keep in Mind?
There are significant penalties for employer who refuse to pay their employees’ wages. In Indiana, this can be up to 2 times the amount of wages, plus attorney’s fees. Failure to pay an independent contractor does not have these penalties. Rather, this is just a simple breach of contract claim. If you are an independent contractor, it is important to have a written contract. As part of the terms of that agreement, specify that you can seek attorney’s fees if you are not paid. Without such a clause, it may be difficult, and expensive to find an attorney to take your case.
If you believe your employer has misclassified you as an independent contractor, you should contact an attorney immediately. It may be that you want to report the company to the Department of Labor.
Effective April 1, 2020 and continuing through December 31, 2020, the Families First Coronavirus Response Act (“FFCRA”) will require certain employers to provide their employees with paid sick leave and/or expanded Family Medical Leave for reasons related to COVID-19.
There are essentially 2 parts to the Act. Part 1 is an emergency expansion of the Family Medical Leave Act (“FMLA”). Part 2 requires certain employers to provide Federal Paid Sick Leave.
The Act applies to all employers with fewer than 500 employees. This includes both full and part-time employees. This number also includes dual employees, such as those provided by professional employment organizations (PEO’s) also known as staffing agencies. There may be exceptions for “extreme financial hardship,” but the Department of Labor has not yet produced any guidance for what that means.
The Act also provides for a “Distressed Small Business Exception,” which only applies to employers with 50 or less employees. Again, because this law is so new, there is little to no guidance from the Department of Labor as to who will qualify for this exception.
So, what does the FFCRA require employers to do?
Generally, all employers must provide their qualifying employees with:
Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined either (1) pursuant to Federal, State, or local government order or advice of a health care provider, and/or (2) is experiencing COVID-19 symptoms and seeking a medical diagnosis; AND up to 10 additional weeks of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of COVID illness or a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor.
FAQ’s about the FFCRA:
How does an employee qualify for these FFCRA benefits?
Some examples include:
Being diagnosed with the COVID-19 virus.
Having symptoms of the virus.
Being required to be in self-quarantine.
Being ordered by your doctor to self-quarantine.
Having to care for a spouse or child who is infected with the virus.
Another common example will be caring for a child whose school or daycare has been closed because of COVID-19 – Or having substantially similar condition based on guidance from the Secretary of Health and Human Services.
Can both parents claim paid leave under the FFCRA?
There is nothing in the law that suggests that both parents would not be entitled to paid leave if they otherwise qualify for the benefits.
Can my employer require me to use paid sick leave before paying benefits under the FFCRA?
It depends. The expanded benefits to FMLA do not kick in for the first 10 days, therefore you may be required to use unpaid sick leave to cover that gap. The mandatory sick leave would not require you to use accrued unpaid leave.
How much pay am I entitled to receive?
It depends on whether you are seeking the expanded benefits of the FMLA, or the mandatory paid sick leave. Normally, a qualifying employee is entitled to 12 weeks of unpaid leave under the FMLA. The new law expands that to include paid leave of two-thirds of base pay based on number of hours normally worked. The maximum is $200 per day, or $10,000 per employee, based on 12 weeks of eligibility.
The mandatory paid sick leave under the FFCRA is capped at $511 per day, with a total benefit of $5,110 per employee.
How are employers expected to pay for these FFCRA benefits?
The government has rolled out several plans to help small business employers pay for these new benefits. One option is a dollar for dollar tax credit for payments made. A second option is a small business loan through the Small Business Administration (SBA) to cover payroll costs. If certain conditions are met, and all of your employees remain on the payroll for a specified period, these loans will be forgiven (they don’t have to be paid back). Lastly, some employers may have business interruption insurance that could be applicable. Definitely check your policy to determine coverage.
Can my employer disclose my diagnosis of COVID-19?
Yes, under certain circumstances, there are exceptions to HIPPAA’s confidentiality requirements. For example, an employer can disclose such a diagnosis for the safety of your co-workers.
What if I contracted COVID-19 at work, will workers’ compensation cover my treatment?
There is much we don’t know about how the new laws will be interpreted, and whether a diagnosis of COVID-19 could be considered an occupational disease. Certainly, for those on the front lines fighting this disease, for instance health care workers, an argument could be made that it is a risk of the job.
If I have to provide these FFCRA benefits, my business will be forced to shut down. Are there any exceptions?
Yes. Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern.
If I have to take leave, can I get my job back when I return?
Yes. The new law requires employers with 25 or more employees to reinstatement after 12 weeks. If your employer has less than 25 employees they must “make reasonable effort” to reinstate an employee who has taken leave under the Act.
In these uncertain times, it is always best to know your rights. If you have questions about Coronavirus/COVID-19, and your entitlement to benefits under the new laws, please contact us for a free legal consultation. We are not currently taking in-person interviews in our efforts to avoid unnecessary spread of the virus, but we are always available for telephonic consultations.
We have all seen it, and perhaps even done it ourselves. Driving down the road with a cell phone in our hand. Indiana House Bill 1070 “Distracted Driving,”(read here) passed the House by a vote of 86-10 last week and has been referred to the Indiana Senate. This bill will make it illegal to have a cell phone or other “mobile device” in one’s hand while operating a motor vehicle in Indiana. It modifies the existing law which prohibits texting while driving to include all uses of a mobile device that are not hands free or voice activated. The current law which makes it “unlawful to type, transmit, or read e-mail or text messages on a communication device while driving in Indiana,” has been in effect since July 1, 2011, but has been ineffective in curbing the behavior. This is due primarily, because the existing law as written, is difficult to enforce. This new law could go a long way to prevent distracted driving, and potentially save lives, because it will allow officers to write tickets simply by seeing a person operating a vehicle with a device in their hand, and there will be no requirement that they prove that the operator was actually using the device.
The Indiana Department of Labor defines distracted driving as, “any non-driving activity a motorist engages in that has the potential to distract him or her from the primary task of driving. Stressful jobs, busy lifestyles and technology are just a few reasons why individuals may engage in distracted driving activities.” https://www.in.gov/dol/2873.htm
There Are Three Primary Types of Distracted Driving:
Cognitive distraction takes your mind off the road.
Visual distraction takes your eyes off the road.
Manual distraction takes your hands off the wheel.
Texting, or otherwise using a device to search the internet, change a song, look up a contact, or like a Facebook post can be extremely dangerous because it involves all three types of distraction. Your mind is not focused on the road because you are concentrating on your device. Your eyes are also taken away from the road, as are your hands. As we all know, it only takes a second of distraction to cause a crash.
The U.S. Department of Transportation reports that in 2012, 3,328 people died in crashes linked to driver distraction, and more than 421,000 more people suffered a distracted driving-related injury. In fact, 17 percent of all crashes resulting in an injury involved driver distraction. More recent statistics indicate nine people are killed and more than 1,000 injured daily in accidents in which at least one driver was distracted.
Nearly 4,000 people were killed in crashes involving distracted drivers in 2015.
Distracted driving was the reported cause of death of 3,450 people in 2016.
An estimated 391,000 drivers were injured in distracted driving crashes in 2017.
For comparison, there were 39,773 gun deaths in the United States in 2017.
In 2019, distracted driving was a reported factor in 8.5% of fatal motor vehicle crashes. https://www.thezebra.com/distracted-driving-statistics/
If you support this Bill we would encourage you to contact your State Senator and request that they vote in favor of HB 1070,click here.
Once the Charge is filed, it is sent to your employer, and they are given an opportunity to investigate the allegations and file a response. The employer may conduct the investigation internally, or, they may choose to hire an outside attorney to investigate the allegations in your Charge. The employer’s response is referred to as their “Position Statement.” Usually, the Position Statement filed by your employer will deny the allegations in your Charge, and may state other non-discriminatory reasons for any adverse employment action that has been taken against you. For example, the employer may state that you were a bad employee, that you missed too much work, or you did not follow instructions. If this is the case, the EEOC may ask you to provide additional evidence to support your claim of discrimination or harassment.
Once both sides have had an adequate opportunity to state their respective positions, the EEOC may move forward with an investigation.
WILL THE EEOC HELP ME SETTLE MY CASE?
If both sides agree, the EEOC may refer your case for a settlement conference, also called “mediation.” The EEOC has mediators on staff who will help both parties to resolve your dispute.
If both parties don’t agree to mediation, or if mediation is unsuccessful, the EEOC will move forward with an investigation into the allegations in your Charge of Discrimination. They can interview witnesses and request documents from either party to assist with that investigation.
HOW LONG DOES THE EEOC PROCESS TAKE?
Currently, an EEOC investigation can take up to 1 year. However, If the EEOC does not complete its’ investigation within 180 days after you filed your Charge, then you can request that they issue a Right to Sue letter. The Right to Sue letter allows you to file a lawsuit against your employer. It is very important to remember that you cannot file a lawsuit against your employer until you have received the Right to Sue letter from the EEOC.
Upon receipt of your Right to Sue Letter, you have 90 days in which to file a lawsuit against your employer. If you don’t file suit within 90 days, your claim will be barred.
What should I do if I feel I am the victim of harassment or discrimination?
The most important thing to do if you believe you are the victim of harassment or discrimination is to report it to your employer, preferably in writing. If you don’t report, your employer can always deny that they knew that any harassment or discrimination was occurring. Many employers have a handbook which should contain the company’s policies and procedures for reporting discrimination, harassment, or a hostile work environment. If you report harassment or discrimination, and your employer does not remedy the situation, please call me for a free consultation.