Employee terminated for failure to “call-in” and physical confrontations with co-workers

Employee terminated for failure to “call-in” and physical confrontations with co-workers

Kampel v Westchester County Health Care, Corp., 286 AD2d 390

Robert Kampel, was served with disciplinary charges alleging excessive absences, failure to comply with the established call-in procedure to report his absences, and two incidents in which he pushed co-workers. Found guilty, Kampel was terminated from his position.

Finding that the disciplinary determination was supported by substantial evidence, the Appellate Division, citing the Pell standard, Pell v Board of Education, 34 NY2d 222, sustained the penalty imposed. The court said that dismissal was not so disproportionate to the offenses for which Kampel had been found guilty as to be “shocking to one's sense of fairness.”

Independent contractors and Title VII

Independent contractors and Title VII

Holtzman v The World Book Company Inc., USDC, EDPa.- 2001 WL 936492

It is not uncommon for a public employer to engage the services of an “independent contractor” to perform certain tasks.

In deciding the Title VII complaint filed Arlene Holtzman, a former employee of the World Book Company, Senior U.S. District Court Judge Lowell A. Reed Jr. ruled that Title VII protects workers who are “employees,” but does not apply to independent contractors.

According to the decision, Holtzman's position was “outsourced” by World Book and she became an “independent contractor” although she performed essentially the same duties she had performed as a World Book employee. This change in status, said Judge Reed, meant that Title VII no longer was applicable as Title VII only covers applicants for employment and employees.*

The court noted that in 1995 World Book reorganize its sales operations. As a result, it negotiated contracts with individuals designated “regional directors.” When Holtzman was told of the new arrangement, she approached Rosemarie Lee, a former World Book branch manager. Lee had formed her own corporation, Leer Services. Leer's sales force included a number of former World Book sales representatives. Holtzman signed a contract with Leer Services.

Was Holtzman an employee, and if so, whose employee? Judge Reed said that the U.S. Supreme Court set out a number of factors to be considered in determining whether or not an individual is an employee or an independent contractor in Nationwide Mutual Insurance Company v Darden, 503 US 318.

The Supreme Court's “common law test” for determining who qualifies as an “employee” in Darden lists the following factors to be considered in making the determination:

1. The hiring party's right to control the manner and means by which the work is accomplished.

2. The skill required;

3. The source of the supplies and tools used by the individual;

4. The location of the work;

5. The duration of the relationship between the parties;

6. Whether the hiring party has the right to assign additional duties or projects to the hired party;

7. The extent of the hired party's discretion over when and how long to work;

8. The method of payment;

9. The hired party's role in hiring and paying assistants;

10. Whether the work is part of the regular business of the hiring party;

11. Whether the hired party is in business;

12. Whether the hiring party provides employee benefits; and

13. The tax treatment of the hired party.”

Applying the Darden factors to Arlene Holtzman's position selling World Book's educational products, Reed found that her status had clearly changed in 1995 from employee to independent contractor and thus she was not able to maintain her Title VII action.

* Title VII defines the term “employee” as “an individual employed by an employer ....”

Appointing authority threatening to do what it has a legal right to do is not “coercion”

Appointing authority threatening to do what it has a legal right to do is not “coercion”

Rychlick v Coughlin, 63 NY2d 643

Suppose an employee entitled to pre-termination “notice and hearing” is told that unless he or she immediately resigns from his or her position, he or she will be served with disciplinary charges. Does such a demand constitute unlawful coercion? This issue was considered by the New York State Court of Appeals in Rychlick.

Rychlick, a State corrections officer, was told that unless he immediately submitted his resignation, formal disciplinary charges would be filed against him. He submitted his resignation. A few days later he asked to withdraw the resignation on the grounds that it had been “forced” from him. When his request was denied, Rychlick sued, claiming the resignation had been obtained under duress and thus was void.

The Court of Appeals upheld the appointing authority's refusal to allow Rychlick to withdraw his resignation, ruling that threatening to do what one had the legal right to do -- file disciplinary charges against an employee -- does not constitute unlawful duress.