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

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

 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: http://www.nlrb.gov/news-outreach/fact-sheets/nlrb-and-social-media.

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.