Independent Contractor or Employee?

By Employment

I am asked all the time, “I 1099ed that person, she is a contractor. Right?” For some reason lots of decision makers believe that a 1099 and calling someone an independent contractor makes a person a contractor.

The truth is . . . nope.  Whenever I talk to folks about this issue, I try to get them to think about trades people; a plumber is the classic example of a contractor, unless you are running a plumbing business.  But for this discussion we aren’t.

When we hire a plumber, he comes to where we want the work done, drives his own truck, brings his own tools, pays his own expenses, and he does the work using his own experience; we don’t give him any direction as to how the job should be done.

The plumber’s work has no bearing on the work of our businesses.  Once the plumber is done, we pay him and he moves on to the next job.

Now, with that example in mind, take a look at your current workforce.  Do your contractors look like the plumber or do they look like employees. They may be employees if:

They have been working for you for an extended period of time;
They work in the same business as your business;
You provide them with direction in the means and manner of their job;
You pay them like your employees; or
They only work for you.

I could go on, but if you answered yes to any of these questions, your contractors might be employees.

The Texas Work Force, the IRS, the Department of Labor, and Texas Courts use multi-factor tests to determine if an independent contractor is truly an employee.  So, if you are relying on a 1099, to justify calling someone an employee, you might have some issues. You may need to reclassify them as employees and that is where it gets tricky.
Post by: Michael Melder

Drug Testing Employee Candidates: Medicinal Use of Marijuana in the Great State of Texas

By Employment

Just the facts Ma’am:

Candidate lives in California and obtains a prescription for marijuana.  We are going to assume that she used the prescription as prescribed. Wink!

She then moves to Texas and applies for a job.  But wait, the employer performs drug testing.

What is the employer’s obligation?  Could it refuse to hire the candidate, despite the candidate’s “legal” use of marijuana?

My advice was for the candidate and you might be shocked at what it was, but I digress.

What is the employer’s obligation if the candidate’s test is positive?  The candidate has legally used marijuana.

The short answer:  The employer can elect not to hire the candidate.

But the candidate was using marijuana legally!  Not according to Texas and federal criminal statutes.  The stuff is still illegal in most states and federally.

Many states are flexing their statehood muscle and passing laws that fly in the face of federal laws.  Decriminalizing the use of certain drugs is just one example of states exercising their rights.

Although California has elected to legalize the use of medicinal marijuana, Texas still considers the possession and use of it illegal and so does the United States of America.

If you are thinking that this might be an ADA issue, think again.  Illegal drug use is specifically excluded from the definition of a “qualified individual with a disability.”  However, the use of the illegal drugs must be the reason for the decision not to hire an otherwise qualified individual with a disability.

So a Texas employer confronted with an issue like this should first look to its policy on drug testing.  Follow the policy and apply it consistently.
Post by: Michael Melder

Upset over Employee Facebook Posts? Think before you Fire

By Employment

 POST by Michael Melder.

The law that protects unions applies to social media postings by nonunionized workforces.  Why?

The National Labor Relations Act (NLRA) protects employees’ rights to participate in concerted activity.  What that means is, employees can get together and talk about how bad their boss is, or how much they make, or how terrible their work environment is, etc.

I’ll call it grousing over job conditions.  We have all done it.  More traditionally, we participated in concerted activity/grousing during lunch, happy hours, or BBQs with coworkers.  However, the internet has changed all of that. Now many employees post up on Facebook or other social media sites the same things we “talked” about over beers and brats.  For some folks, their postings have led to their termination after the boss gets wind of the not so flattering rants.

The National Labor Relations Board (NLRB), the arm of the government that is charged with enforcing the NLRA, has taken issue with employers who fire employees because of social media postings where the employee is discussing the terms and conditions of employment with other employees.

Beginning in 2011, the NLRB’s general counsel began issuing memorandums regarding employee’s use of social media to participate in concerted activity.  Ultimately, it issued three memorandums regarding the topic.  More recently, the NLRB has issued board decisions regarding social media and concerted activity.  As you would expect, the decisions are detailed and fact intensive.  The following link provides some details on the subject:

Needless to say, the use of social media by employees to participate in concerted activity is still novel, nuanced, and changing.  Therefore, as an employer you should use caution before firing or disciplining an employee over social media postings.  If you are an employee and you have suffered an adverse employment action because of your social media postings, your employer may have violated the National Labor Relations Act.

THE BOX: Corrective Action, not Employee Discipline

By Blog, Community, Employment, Grab Bag

Post by: Michael Melder


So the conversation started like this:

Business Owner: “I have two employees who don’t seem to be doing their jobs like I want them to.”  He provides me with specific examples.

I am sure you can think of at least one employee in your organization that isn’t living up to expectation.

After listening to him, I provided my philosophy about corrective action.  I call it “The Box.”

Employers hire employees to do a certain job; the employer’s defined position and duties are The Box.

An employee takes a job and a position and he has his own expectations of what the job requires and the duties necessary to perform the position.

This is the start of an expectation disconnect; the employee begins to move outside The Box.   As the employer and employee settle into the relationship, the employee will begin to define the job and position he thought the employer wanted him to do.  More importantly, the employee will begin to define the roll he wants to do.  Of course not all employees do this and sometimes the changes are welcome and positive.

However, clearly the business owner I was having the conversation with wasn’t happy with the performance of his employees.

He had allowed his employees to move outside of The Box.  He expected his employees to do “X” and they were doing “Y”.

I suggested he nudge the employees back in to The Box.  Meaning, communicate with the employee in a positive and constructive manner what the employer’s expectations are for the position and the expected duties.

Notice I said “in a positive and constructive manner.”  Correct the behavior.  Define your expectations.  This is corrective action or what most employers call “Progressive Discipline” in their handbooks.

I’ll admit that at some point correcting an employee who fails to fall in line will require traditional discipline.  However, if expectations are communicated effectively, such discipline isn’t a surprise to the employee.

Surprise is what you want to avoid.  An employee who feels ambushed by an employer will look to third parties for help.  I get those calls all the time from jilted ex-employees trying to figure out the “Why.”

Sometimes it is a good thing to think inside The Box. Nudge an employee back – don’t push.

FMLA: Intermittent Leave & The Party Animal

By Blog, Community, Employment


FMLA: Intermittent Leave & The Party Animal

Regulating Intermittent FMLA Leave: May an Employer Request a Doctor’s Note for Each Intermittent FMLA Absence?

Post by:   Michael Melder

[The above subtitle came from an article I recently read.  If you would like to read it, click here.]


If you don’t want to read it here is a short summary: the employer in the article got tired of employees using intermittent FMLA to extend their weekends.  A few employees were taking FMLA leave on Mondays and Fridays.  The employer believed the employees were abusing their leave. Really, employees would do that!

For you employers who haven’t experienced this yet, employees may take family medical leave is small chunks. For employers having to administer FMLA, abuse of intermittent leave can cause many headaches. One common problem is trying to stop an employee who is intentionally using family medical leave to take three day weekends. This employer was just trying to stop the practice of some employees using intermittent leave to do just that, take extended weekends.

I highlight the article because it spotlights an important issue, how does an employer deal with an employee abusing family medical leave?   The employer in the article resorted to requiring the employee to get a doctor’s note for each leave request. If you are considering that option don’t; it might lead you to the courthouse steps.

So what is an employer to do?

Before I answer the question, let me digress and quote some law, “The employee and employer shall attempt to work out a schedule for such leave that meets the employee’s needs without unduly disrupting the employer’s operations, subject to the approval of the health care provider.”

The quote should be empowering!  The FMLA actually requires the employee to work with the employer to work out a schedule that doesn’t disrupt the employer’s operations. If an employer suspects abuse, such as an employee who seems to take too many Mondays and Fridays off under the guise of FMLA, take control.

How?  Low hanging fruit, but consider these:

  1. Require the employee to provide dates when leave is to be expected, if possible.
  2. Push back when leave does disrupt operations.
  3. Provide alternate days or times that fit with operations.
  4. If you consider abuse, address it.

What would that look like?  Well, circling back to the article.  If an employee is taking too many Mondays and Fridays off, have the employee reschedule that leave to a Monday afternoon or a Friday Morning or a Tuesday or Thursday.

The employer has every right to require the employee to take leave that works with the employer’s schedule. It is a collaborative process.  Like any legal issue it isn’t black and white, but if you suspect abuse, exercise your right to require the employee to work out a schedule that doesn’t disrupt operations.


Melder Joins Chester & Jeter LLP

By Blog, Employment, Litigation, News

The Dallas-based business & innovation law firm Chester & Jeter LLP is pleased to announce that labor and employment attorney Michael Melder has joined the firm as Of Counsel.

Michael’s practice will focus on labor and employment law, including matters such as employment agreements, employee handbooks and policy manuals, workplace investigations, and issues related with hiring, disciplining, and terminating employees.

Immediately prior to joining Chester & Jeter, Michael was in-house counsel with Ennis, Inc., one of the largest print manufacturers in the United States.  While at Ennis, he provided labor and employment counsel to divisional leaders and managed the company’s human resources department.  Prior to Ennis, Michael worked for Key Harrington Barnes, a boutique management-side labor and employment firm.

“Jim and Justin are terrific attorneys and we have complementary practices that provide exceptional service to the small to mid-sized company,” notes Michael of the move. “Joining forces with the firm was an easy decision. “

“Michael is a service-oriented lawyer with a great reputation,” adds partner Justin Jeter.   “His practice and his personality will integrate into our firm very well.”

According to Jim Chester, Chester & Jeter’s managing partner: “Adding Michael’s labor and employment expertise to our firm marks another significant step toward our goal of establishing a boutique law firm that meets the comprehensive, mission-critical legal needs of a select type of client: start-ups, entrepreneurs, and small to mid-sized innovation-based companies.”



About Chester & Jeter LLP

Chester & Jeter LLP is a Dallas, Texas law firm providing comprehensive legal services to innovation-based companies doing business in the US, around the world, and on the web.  Its mission (and passion) is helping entrepreneurs and emerging companies solve problems and protect their interests. Chester & Jeter LLP delivers value by providing business-savvy, cost-effective solutions to legal challenges.  The firm offers a wide array of business legal solutions, such as business entity formation (LLCs, corporations, etc.), trademarks and other intellectual property, technology transactions, contracts, ecommerce, employment law, litigation and dispute resolution.  Additional information about the firm and its attorneys may be found at