- A school referee’s gender bias claim failed because she wasn’t an employee of the organizations she sued, the 2nd U.S. Circuit Court has ruled (Girard v. International Assoc. of Approved Basketball Officials, Inc., Central Connecticut Board No. 6, Inc., No. 20-981-cv (2nd Cir., Jan. 22, 2021)).
- The plaintiff, a middle and high school basketball referee, sued the International Association of Approved Basketball Officials, Inc. and Central Connecticut Board No. 6, alleging gender discrimination and retaliation for complaining about the alleged bias. Specifically, she complained that she was assigned to low-level games because she is female. The defendants assign the referees to games but referees are paid on a per-game basis by schools and school districts.
- A federal district court ruled that the referee failed to "plausibly allege" that the defendants were her employers or employment agencies under Title VII of the Civil Rights Act of 1964; on appeal, the 2nd Circuit agreed. Common law principles direct courts to consider whether the individual was ever hired and, to determine that, courts primarily look at whether the person received direct or indirect pay from the alleged employer. The defendants did not pay her for officiating games, the court said, and she also failed to distinguish her relationship with the schools from that of an independent contractor where the schools otherwise lack the right or ability to control how services are performed.
Federal nondiscrimination laws and wage and hour laws generally require an employee-employer relationship for coverage. Government agencies and courts use many different tests when determining whether a worker is an employee or an independent contractor, but they often come down to how much control the employer exerts over the work and working conditions. The more control, the more likely it is that the worker will be deemed an employee.
The parties' intents and preferences have almost no bearing on the determination, even if both parties agree that the worker should be considered an independent contractor. In one instance, an appeals court ruled that the actual amount of control 7-Eleven exerted over its franchisees carried more weight than a signed agreement. Similarly, a federal court in Alabama concluded a delivery driver was an employee even though he had signed a form confirming his independent contractor status.
HR may need to consider and watch applicable laws and tests governing independent contractor status, especially because the law in this area continues to evolve.
During the final days of the Trump administration, the U.S. Department of Labor published a rule revising its interpretation of independent contractor status under the Fair Labor Standards Act. The rule, generally viewed as employer-friendly, adopts an "economic reality" test that examines two core factors: the nature and degree of workers' control over their work and the opportunity for profit or loss based on initiative, investment or both. The Biden White House, however, on Jan. 20 issued a memorandum to executive department and agency heads ordering them to withdraw or postpone regulations and to halt on all non-emergency rulemaking and regulatory activity pending review by a Biden appointee.