Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Friday, March 7, 2014

Is Sexual Harassment Against Contract Employees Legal?

I received this question on my post I Reported Harassment and Now HR Wants to Meet With Me. What Do I Do?
Thank you for this article, it is very informative. I was wondering what the difference is when I'm a contract employee for a company. I work minimal hours weekly at a private company. I experienced verbal sexual harassment by a coworker. I reported it to the director and was fired via email a few days later. Then a few hours later I was re-hired. They realized I could sue them apparently. They are now limiting my freedom to move around the company without someone with me. They are not firing the offender. I don't know if I have any claims against them as a contract worker (1099 misc.) but am infuriated by how unprofessionally I was treated. I asked for a copy of their sexual harassment policy and was told I am not entitled to it since just an outside vendor. I currently am back working my shifts, although they clearly do not want me there and only un-fired me to prevent a lawsuit.
In general, independent contractors are not covered by anti-discrimination laws. However, most people classified as contractors are, IMO, misclassified and are really employees. I've written about this in detail in my article 11 Things To Know Before You Sign An Independent Contractor Agreement. In general, if your employer controls the time, place and manner of your work, you're an employee. If they can discipline, tell you how to do your work, have to approve vacation time, and you can't hire an assistant if you want, you're an employee.

There's a handy-dandy form the IRS has called the SS-8 that you can fill out and the IRS will do the work for you. If you think you're really an employee, fill it out, send it in and the IRS will figure out if you're an employee or not. If you are an employee, the employer will owe back taxes and you'll be covered by employment laws.

You can also talk to an employment lawyer in your state. If you file with EEOC, you need to be prepared for a fight on the issue of whether you're an employee or not, so either do the SS-8 form or make sure you have your legal arguments and proof ready for EEOC.

If you're a contract employee and not an independent contractor, then you're covered. However, it's your actual employer, not the company you're providing services for, who is primarily liable. If you haven't reported it to your actual employer, then you should. If the company you're providing services for controls your work and you enough, they may be a joint employer that would also be liable for the sexual harassment.

While the company doesn't have to fire the offender, if he/she does it again they could be liable since they are now on notice of his inclination to sexually harass.

This certainly sounds like a retaliation situation, so if you are misclassified then you should definitely file with EEOC and/or look at your state's whistleblower laws.

3 comments:

  1. Companies must train their employment lawyers as well. Because even if they are lawyers, they can be still abusive.

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  2. Nice blog, thanks for sharing it is really very informative information . I am waiting for the next information. Keep up the good work.



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  3. Nice! In a word this is a great post! Here i found many tips about sexual harrasment of companies that's help me very much. Frank Nicholas You are not alone. Irvine based sexual harassment lawyer Frank Nicholas has discovered just how common this is for working women in the USA. Find out more based on recent research.

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