Monthly Archives: June 2012

June 22, 2012

NLRB’s New Website

The U.S. Department of Labor received much fanfare when it rolled out its new timesheet app.  In its news release of 2011 (, DOL indicated that it believed the application would ensure that workers received the wages to which they were entitled. 

Not to be outdone, although not as an application, the National Labor Relations Board announced that it has launched a new interactive website to describe the rights of employees to engage in protected concerted activity under Section 7 of the National Labor Relations Act.  The webpage can be found at:

You will see that the NLRB details numerous case examples where it found the conduct of employers to violate the act.  The interactive map serves to lead the reader to the detail of a case that provides factual detail about the violation.  This is just another example of how the social media network can be used as a public relations effort to justify an agency's public purpose and to inform employees of their rights. 

For more information on the NLRB or other traditional labor relations questions, feel free to send a comment or reach me directly.

Steven M. Gutierrez

June 21, 2012

New Case Clarifies Test for Contractor Status

By Mark Wiletsky

Many organizations rely on independent contractors–sometimes referred to as consultants or just contractors–to perform a variety of services.  But determining who is a contractor, as opposed to an employee, is not an easy task.  A variety of state and federal rules apply, each with different factors and tests.  If you misclassify an individual, the penalties can be severe.  For example, in Colorado, a business may be fined up to $5,000 per misclassified employee for the first offense, and up to $25,000 per misclassification for subsequent violations if the violations were willful.  Businesses may also be liable for back taxes, interest, failure to pay overtime, and a variety of other penalties for failure to provide benefits.  Therefore, it's very important to ensure an independent contractor fits the tests for contractor status.  A new Colorado case provides some important guidance on this subject.

In Softrock Geological Services, Inc. v. ICAO, the Colorado Court of Appeals had to decide whether an individual who provided services to Softrock as a contractor over a three-year period, without performing similar services for others during that period, was a contractor or employee.  Under Colorado's unemployment statute, an individual is presumed to be an employee unless the organization demonstrates that the individual: (1) is "free from control and direction in the performance of the service" and (2) "is customarily engaged in an independent trade, occupation, professional, or business related to the service performed."  The second part of the test is often difficult to prove.  A number of Colorado cases have concluded that unless the contractual arrangement is relatively brief, an individual must perform services for more than one entity to be a contractor.  Such a test, however, places a heavy, and often unfair, burden on businesses.

Businesses do not always track the outside activities of a consultant, and a consultant may choose to work for only one entity for a period of time.  Recognizing this, the Court of Appeals in Softrock concluded that it is improper to classify an individual as an employee solely because that person did not perform similar services for others while performing services for the alleged employer.  Instead, the failure to perform services for others is merely one factor to be considered.  The other factors include: the existence of a quality standard; payment of a salary/hourly rate as opposed to a fixed or contract rate; ability to terminate the individual for limited reasons, such as failing to produce results or violating the contract; whether training is provided; whether tools and benefits are provided; whether the individual is subject to a set schedule or has authority to set his or her own schedule; payment to a business or tradename as opposed to an individual; and whether the individual and the business have combined operations or maintain separate and distinct operations.  The court remanded the case to the Industrial Claims Appeals Office for reconsideration, though it is possible this case will be reviewed by the Colorado Supreme Court. 

The court's guidance in Softrock is helpful because many times, individuals will meet the test for contractor status even though they choose to perform work for only one entity for an extended period.  Still, as this case demonstrates, repeatedly retaining an invidual to perform services as a contractor over an extended period, without confirming that he or she is working for others, is risky.  As a result, it is best to ensure that individuals are, in fact, working for others or making their services available to others while performing services for your business.

Here are some additional tips to keep in mind when retaining a contractor:

1. Don't classify someone as a contractor just because that person asks to be a contractor.  The business bears the responsibility, and liability, for appropriately classifying its workers.

2. A signed contract is not enough.  A court or auditor will look beyond the contract to determine whether the individual meets the appropriate tests for contractor status.

3. Do not pay an individual; instead, ensure you are paying a tradename or business entity.  Payment to an individual is a red flag for auditors, even when the person is legitimately a contractor.

4. Avoid hiring former employees as contractors, unless you are certain they meet the test for contractor status.  Again, this is a red flag for auditors, as employees are sometimes reclassified as contractors even though their actual duties have not changed.

5. Get a business card, print out a website, or maintain some other evidence that the individual has a business and makes his or her services available to others.  This type of evidence can be very helpful in the event of an audit.

6.  Get your attorney involved early to ensure the person meets the appropriate tests.  Although a written agreement is not dispositive, it can help, and analyzing the issue before an audit is generally better than analyzing it for the first time during or after an audit has begun.

7. Do not treat the individual like an employee, i.e., do not have the person sign an employment contract, do not evaluate the individual with the same forms you use for employees, and if you give the person a business card, be sure it notes the individual is a contractor.

8. Do not retain someone as a contractor with the idea of hiring that person as an employee if he or she does well.  Most likely, that person will not fit the tests for contractor status.

9. Do not assume that individuals performing short-term projects or part-time work are automatically contractors.  Often times, they are part-time or short-term employees.

10. When in doubt, err on the side of employee status. 

Contractor misclassification is a big issue in Colorado and many other states.  Therefore, be cautious when retaining contractors, and be sure they meet the appropriate tests for contractor status.

June 7, 2012

Last-Chance Agreements — Employer beware!

The EEOC, in its recent press release ( of May 29, 2012, announces a rare victory on summary judgment in what could be a bad trend for employers.  In the underlying case of EEOC v. Cognis Corporation, a foreign multinational corporation, the federal judge ruled that the company retaliated against an employee for refusing to waive his rights to file a discrimination charge, both for past conduct and prospective conduct. 

The employee, as a condition of continued employment, was asked to sign a last-chance agreement that prohibited him from filing a discrimination charge.  According to the EEOC, Cognis conditioned the employment on the execution of the last chance agreement and when the employee refused to be bound by that agreement he was fired.  As the Court noted in its opinion, it is not often that an employee is granted summary judgment on a Title VII retaliation claim. 

The outcome here is problematic for two reasons.  First, in most cases there is often a fact issue over the stated motivation for the adverse action taken by the employer because the motivation for the underlying decision is almost always in dispute; thus, there is a necessary question of fact that would defeat a summary judgment.  Second, the Court’s willingness to discount the fact that had the employee not executed the last-chance agreement in the first instance he would have been terminated for a legitimate and non-discriminatory reason – poor performance – is worrisome.  In rejecting Cognis’s argument on this point, the Court reasoned that even if it credited Cognis’s argument; it was the employee’s revocation of the last-chance agreement that constituted an adverse action, an act that might dissuade a reasonable worker from making or supporting a charge of discrimination.  (See Opinion).  This reasoning, of course, doesn’t adequately address the fact that the worker essentially was given consideration to remain employed under the last-change agreement.

What is clear from the Court holding in Cognis is the fact that the last-chance agreement is said to have threatened termination for undertaking future protected activity, which the Court says satisfies one element of the prima facie case of retaliation – a preemptive retaliatory act.  Now, all that remains for the Court is a determination of damages.  If the Cognis last-chance agreement had not included this prospective provision, I wonder how the case would have turned.

This holding is sure to motivate the EEOC to seek out similar cases of this kind.  The EEOC concludes its release by indicating that “[f]iling  EEOC charges is a fundamental right of American employees, and this agency always  stands ready to protect that right.”  EEOC’s Chicago District Director John  Rowe further states, “This court’s opinion should cause employers to remember that seeking to dissuade employees from exercising that right is not only bad policy, it’s a violation of federal law which can give rise to very substantial liability.”

Despite the Court’s finding and the threats by the EEOC, this author maintains that narrowly crafted last-chance agreements are often useful to employers, both to ensure employees understand that future satisfactory performance is demanded and to give the employee fair opportunity to improve his/her conduct.

For more information contact Steven M. Gutierrez

June 6, 2012

NLRB Issues More Guidance on Social Media Policies

By Mark Wiletsky

The National Labor Relations Board (NLRB) recently issued another memorandum concerning social media policies and cases.  My colleague, Scott Randolph, issued a great blog post summarizing the key take-away points from the latest memo – I recommend reviewing the memo and Scott's post if your organization has, or if it is considering developing, a social media policy.  The law in this area continues to develop each day, and it can be difficult to predict exactly how it will evolve.  As a result, before disciplining an employee for social media activity or issuing a written policy, be careful and give some thought to how such action may be viewed under existing law–and how it might be judged a year or two down the road given current trends.

June 6, 2012

NLRB General Counsel Issues Further Social Media Guidance

By Scott E. Randolph

The National Labor Relations Board(“NRLB”) recently issued a third memo on social media policies.  The memo discusses sample social media policies and analyzes whether the policies infringe on protected Section 7 rights under the National Labor Relations Act(“NLRA”).  The NLRB’s memo is available here.  To determine whether a work rule, including a social media policy, is overbroad and chills protected speech, the NLRB uses a two step rule:

First, a rule is clearly unlawful if it explicitly restricts Section 7 protected activities. If the rule does not explicitly restrict protected activities, it will only violate Section 8(a)(1) upon a showing that:(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.

Using that two-part test, the NLRB found that a policy which stated “Don’t release confidential guest, team member or company information” to be unlawful because it would prevent an employee from discussing their own conditions of employment.  Another policy prevented employees from sharing confidential information unless necessary to do their jobs.  The NLRB found such a provision to be overbroad and thus unlawful under the NLRA.  Similarly, the NLRB found a provision of the employer’s policy threatening criminal prosecution or discharge from employment for improper social media posts to be overbroad.  It was not unlawful, however, for the policy to remind employees to be suspicious of requests to disclose confidential information.

Another policy was held to be overbroad and unlawful because it required employees to ensure that posts were “completely accurate” and not reveal “non-public information” to the public.  Once again, such restrictions would chill protected speech.  It was legitimate for an employer to prohibit disclosure of “secret, confidential, or attorney client information” because these categories did not relate to employees and the employer had a legitimate interest in protecting the confidentiality of this information.  That same policy was also held to be overbroad because it cautioned employees against “friending” other employees and required them to report any “unusual or inappropriate internal social media activity.” 

In reviewing another policy, the NLRB held that a prohibition against discussing “legal matters” was overbroad because it would prevent employees from discussing potential claims against their employer. 

One portion of a disputed policy was, however, lawful.  That section prohibited users from posting anything in the name of the employer or that could be attributed to the employer without authorization from the company’s president or designated agent.  

Of significance, the NLRB rejected the so-called "savings clause" that the policies were not to be interpreted to chill protected speech.  The NLRB concluded that such clauses do not provide sufficient guidance to employees to determine what speech is prohibited and thus may prevent lawful and protected speech.

The memo concludes with a social media policy which the NLRB has determined to be lawful.  The policy was lawful because it did not restrict protected speech and provided specific examples of what was prohibited.  This included language reminding employees to be respectful, honest and accurate, and to post only appropriate and respectful content.  The policy concluded with an anti-retaliation provision against employees who report deviation from the company’s social media policy.  

Employers should use this opportunity to revisit their existing social media policies to ensure that they comply with the latest guidance from the NLRB.  Failure to do so can result in a finding that an employer has committed an unfair labor practice, even in a non-unionized environment.