“Employee misclassification” has long been a problem that costs workers and the government billions of dollars every year. Employers are notorious for trying to label employees “independent contractors” in order to avoid paying payroll taxes and worker benefits. “Employee Misclassification” is especially common when workers have been injured, harmed, or otherwise mistreated at work. In circumstances where employees organize to form unions, are victims of illegal discrimination, file claims for unpaid wages or overtime, or are terminated without just cause, it is a common litigation dodge of employers to argue that they are not, in fact, employers. The recent Massachusetts Appeals Court case of Fleming v. Shaheen Brothers, 07-P-255 (Feb. 21, 2008) http://socialaw.org/slip.htm?cid=17900&sid=119a provides a unique instance when an employer has a financial incentive to prove that it is the boss to an employee injured on the clock.

In general, Massachusetts workers compensation law provides immunity to employers from personal injury claims by employees injured on the job. As the tradeoff for requiring employers to contribute to workers compensation insurance to make lost compensation and health benefits available, the law prohibits injured workers from bringing personal injury claims, which could potentially provide much large awards. (In certain circumstances, employees may file personal injury claims against third parties that caused the injuries, including manufacturers, and sometimes against fellow employees).

In Shaheen Brothers, an employee was injured while operating a forklift. The employee and his wife sued the employer and the forklift manufacturer. Shaheen Brothers hired, supervised and directed the employees. But, as is not uncommon in the construction industry, Shaheen Brothers outsourced its administrative and payroll functions to a different company, NBS. It was NBS, not Shaheen Brothers, that paid employees, withheld taxes and contributed to unemployment and workers compensation funds. The injured employee argued that NBS, not Shaheen Brothers, was his employer and Shaheen Brothers therefore was not immune from liability for personal injury claims. The Appeals Court disagreed. “NBS cannot be considered a general employer if it did not exercise any control over Fleming’s work duties; performing payroll functions does not amount to a working relationship.”

In concluding that an employer-employee relationship existed between the injured employee and Shaheen Brothers, the Appeals Court relied on the golden rule of “if it walks like a duck, it’s a duck” rather than technical niceties. In other words, if the company hires you, assigns you work, supervisors your work, and has the power to discipline you or change your wages, then it is your employer for purposes of workers compensation, regardless of who is listed on your paystub.

Contact The Governor To Tell Him To Stand With Workers On S. 1029

As we noted on Wednesday, earlier this week Governor Patrick refused to sign legislation designed to strengthen penalties imposed on employers that violate state wage and hour laws. Instead, he sent the bill back to the legislature with a demand that it be watered down. I’m very happy to report that both houses of the Legislature have rejected the Governor’s amendment. On Tuesday, the Senate rejected the amendment, and yesterday the House concurred. The legislature will soon formally re-enact the bill mandating triple damages for violations of state wage and hour laws. Once that happens, it goes back to the Governor.

Once the bill is returned to the Governor, he has three choices – he can veto it, he can sign it, or he can do nothing, which will cause it to become law. Let the Governor know that you want him to join with the legislature and support workers rights by signing S. 1029. You can call the Governor’s office at 617-725-4005 or 888-870-7770 (in state). Or you can send him an e-mail using the form on his webpage, http://www.mass.gov/?pageID=gov3utilities&sid=Agov3&U=Agov3_contact_us.

While you’re at it, consider dropping your Senator and Representative a note to let them know that you appreciate their refusal to bend to the Governor’s attempt to weaken workers’ rights. You can get contact information for your representatives by filling in your address here, http://www.wheredoivotema.com/bal/myelectioninfo.php.

In a major concession to employers, on February 25 Governor Patrick, like Mitt Romney before him, refused to sign legislation designed to strengthen penalties imposed on employers that violate state wage and hour laws, instead sending it back to the legislature with a demand that they water down the law. At issue was S. 1059, which would have reinstated automatic treble damages for employees who prevail in wage and hour lawsuits against their employers. Patrick balked at signing the law, instructing lawmakers to fashion a bill based on the weaker Federal Fair Labor Standards Act.

In 1993, the Legislature significantly strengthened Massachusetts wage and hour laws, giving enforcement power to the Attorney General and giving employees the right to sue directly. Under the 1993 law, employees who prevailed in their suits were entitled to recover their attorney’s fees, and also to recover triple damages for the violations. For years, courts routinely upheld triple damages in such cases. Unfortunately, in 2005, the Supreme Judicial Court, in the case Weidman v. The Bradford Group, Inc., 444 Mass. 698 (2005), ruled that judges had the discretion to not award triple damages. The General Court, in response to Weidman, passed bills that clearly reiterated the legislature’s intent that triple damages be mandatory, and not subject to a judge’s discretion. In the last session, then Governor Romney vetoed the bill. Senate Democrats, seeking to restore worker protections, did not anticipate the same treatment from a Democrat Governor. But that’s what they got. The governor refused to sign the bill, instead calling for the General Court to go easy on employers who violate the law “in good faith, on the advice of counsel and guidance from the governmental authorities.” The federal law, which is weaker than state law in many areas, allows employers to avoid paying extra damages based on a “good faith” defense.

Unfortunately, this action by the governor is not entirely surprising. While Gov. Patrick campaigned as a friend to workers, he spent much of his legal career making millions representing management, including management at the aggressively anti-union Coca-Cola, and his wife is a management-side lawyer at one of the corporate law firms in Boston. Patrick’s action is particularly galling in that he calls on the state to mimic weaker federal law. Of course, Massachusetts prides itself on providing greater protection for workers than federal law requires. For example, Massachusetts protects workers from discrimination on the basis of sexual orientation, federal law does not. Indeed, Massachusetts just raised the minimum wage to $8.00 per hour, the second highest in the nation (the minimum wage in Washington State is $8.07), while the federal minimum wage remains at $5.85. So the governor is asking the General Court to take a step backwards.

The Governor’s plea for poor employers who have to pay their employees damages rings particularly hallow. We’re talking about a group of employers who have been found to have unlawfully not paid their workers! Patrick calls triple damages “unfairly punitive” to employers, but what about the workers who aren’t paid in the first place? Again, prevailing workers were routinely awarded treble damages prior to 2005. Did paying for their sins cause our workforce to crumble? No, in fact, the “triple damages era” corresponded with the economic boom of the 1990s. The bottom line is that this legislation was passed to reinstate what the General Court intended all along – that employers be punished when they fail to pay their employees in accordance with the law. Governor Patrick’s refusal to sign it stifles this worthy goal.