Friday, April 26, 2019

Independent Contractor Makes Employer Liable for Harassment

The way that America does business now is different than before. Where most employers hired full and part time workers to do their work, the trend now for employers is to outsource or use a mix of employees and independent contractors, depending on the task and the expertise involved. When a workplace has such a mix, the application of labor and employment laws can get complicated.

Such was the case decided by a Tennessee district court when sorting through the claims of a discharged employee who sued her former employer for gender discrimination, sexual harassment, retaliation. The former employee, a telemarketing assistant, claimed that she was the victim of unwanted attention, comments and touching from another staff member, a trainer in her department. She alleged that although she attempted to address her complaints to him directly, she ultimately complained to the company president after she was written up and demoted. She was fired the same day that she complained of the trainer to the president. The twist is that the alleged perpetrator was an independent contractor.

The company argued that it could not be liable for actions of an independent contractor because he did not have supervisory control over her. The court found though that the alleged perpetrator gave recommendations and advice to the president about staff to whom he provided training, therefore he did exert some control over the plaintiff and the company could therefore be liable. On the other hand, the court also found that because the alleged perpetrator was only at the worksite two days a week and because the described offensive behavior was only characterized as “inappropriate” that the conduct was not sufficiently severe or pervasive enough to rise to the level of sexual harassment as defined by law.

Employers should note that they can be just as liable for employment law violations perpetrated by independent contractors as they are by employees. It is especially important to include in any independent contractor agreement that they are responsible for compliance with all employment laws and liable for all damages resulting from their breach.