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When is a Person an Employee of Another?
Law Blogs |
2011/07/20 09:25
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On July 19, 2011, the Indiana Court of Appeals issued a decision which I found surprising in McCann v. City of Anderson, ___ N.E.2d ___ (Ind. Ct. App. 2011), Cause No. 48A02-1009-PL-1060. At issue was whether a trial court had properly granted summary judgment on the question of whether a warrant officer was an employee of the Anderson City Court. Despite the procedural posture of the case and factors that weighed in favor of finding an employer-employee relationship, the Court affirmed a decision granting summary judgment to the defendants.
In this case, McCann was a police officer, who eventually became warrant officer for the Anderson City Court in 1998. He held that post until 2005, when the judge asked that McCann be reassigned. As a result of this dismissal, McCann filed suit based on the Indiana Wage Statute, arguing that he had been an employee of the Court and was entitled to funds that had been allocated to the position of warrant officer by that court. The parties filed cross-motions for summary judgment and the trial court granted the defendants' motion.
On appeal, the Court quoted GKN Co. v. Magness, 744 N.E.2d 397, 402 (Ind. 2001), for the seven factors that a court should consider when determining whether an employer-employee relationship exists. The Court then analyzed each of these factors and determined that three weighed in favor of the existence an employer-employee relationship and four against, with the "most important" factor weighing against.
Thus, over all, four of the seven factors, including the most important, "Control over the Means Used," indicate McCann was not an employee of the City Court. Because the City Court was not McCann's employer, he cannot be due any "unpaid wages" from the City Court. Therefore, he cannot assert a claim against the City Court under the Indiana Wage Statute.
The aspect of this decision that is most surprising is that the Court reached this conclusion despite the procedural posture of the case. It could have easily held that, viewing the facts in the light most favorable to McCann, the seven factors weighed both for and against a finding of an employer-employee relationship between McCann and the City Court created a genuine issue of material fact. This indicates that the factor the Court identified as being "most important", whether the purported employer exercised control over the means used by the purported employee to perform work, is very important indeed.
Lesson:
1.It will be exceedingly difficult to prove the existence of an employer-employee relationship if the purported employer did not exercise control over the means that the purported employee used to perform his work.
Brad A. Catlin
Price Waicukauski & Riley, LLC
http://www.indianalawupdate.com/entry/When-is-a-Person-an-Employee-of-Another
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Judge denies class action in cigarette lawsuits
Law Blogs |
2010/11/28 12:14
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A federal judge in Maine yesterday denied class-action status to four lawsuits accusing Philip Morris USA of misleading smokers about the health risks of light cigarettes. The ruling by U.S. District Judge John A. Woodcock Jr. concerns lawsuits that were filed in Illinois, Maine, California and Washington, D.C., alleging that Henrico County-based Philip Morris USA marketed light cigarettes as healthier than regular cigarettes in violation of various consumer-protection and false-advertising laws. The lawsuits are among 15 cases that were consolidated for pre-trial proceedings in federal court. In his ruling, Woodcock said the plaintiffs had not met the requirements for class-action status. "While the judge has yet to rule on the remaining cases in the multidistrict litigation, we believe this decision should serve as a persuasive authority in denying class certification in those and other similar cases as well," said Murray Garnick, senior vice president and associate general counsel for Philip Morris USA parent company Altria Group Inc. The federal court ruling in Maine yesterday was in contrast to a decision in a separate lawsuit in New Hampshire state court Monday. In that case, a superior court judge granted class-action status to a lawsuit against Philip Morris USA over its marketing of light cigarettes. A spokesman for Philip Morris USA said the company will appeal that decision to the New Hampshire Supreme Court.
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Biz Groups Sue State Over Union Law
Law Blogs |
2010/09/07 07:43
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Two business groups claim that Wisconsin enacted an unconstitutional law that prohibits employers from "conducting mandatory meetings with employees to communicate the employer's opinion about the advantages or disadvantages of joining or supporting a union." The 15-page complaint does not mention any advantages to joining a union. The Metropolitan Milwaukee Association of Commerce and Wisconsin Manufacturers & Commerce sued Gov. Jim Doyle and Department of Workforce Development Secretary Roberta Gassman in Federal Court. Gov. Doyle signed Senate Bill 585 into law in May. The law prohibits employers - and unions and hiring and licensing agencies - from discriminating against anyone for "declining to attend a meeting or to participate in any communication about religious or political matters." The business groups claim SB 585 violates the Wisconsin Fair Employment Act and the National Labor Relations Act by failing to allow employers to communicate with their employees. And they say the state exceeded its jurisdiction. |
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Craigslist's 'adult services' decision a blow to free speech?
Law Blogs |
2010/09/07 07:39
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With Craigslist's decision to replace its "adult services" section of its "Services" classifieds with a "Censored" bar that blocks that content, the online powerhouse has once again become a magnet for controversy among those who view the move as a cave-in to limit free speech and to those who accuse the site of facilitating prostitution and possibly a now-dead serial killer's agenda. In a poll Mashable is conducting about the change, the website asked readers if Craigslist's "adult services" should be censored. So far, 71 percent of more than 1,800 who have responded said no, it shouldn't be censored (although the caveat to that "no" is "because prostitution shouldn't be illegal anyway.") In its coverage of the possible free-speech ramifications of the decision, the New York Times boiled down the issue: "Just how much responsibility does a Web site have for what is posted by its users, or for potential criminal activity that results from the posts?" The liability issue has stirred up lots of debate. "If you impose liability on Craigslist, YouTube and Facebook for anything their users do, then they're not going to take chances," Brian Carver, an attorney and assistant professor at the UC Berkeley school of information, told The San Francisco Chronicle last week in a story about the Aug. 24 demand from attorneys general to Craigslist to shut down the "Adult Services" section. "It would likely result in the takedown of what might otherwise be perfectly legitimate free expression." Technology Liberation Front blogger Ryan Radia wrote: "While the state attorneys general are likely celebrating victory this holiday weekend, all they’ve really done is to stifle free speech online and complicate efforts by law enforcement authorities to go after the real bad guys — you know, the ones who are forcing kids into sex slavery."
http://technolog.msnbc.msn.com/_news/2010/09/06/5055303-craigslists-adult-services-decision-a-blow-to-free-speech- |
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American Phys. Goes to ProAssurance
Law Blogs |
2010/09/06 07:40
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Yesterday, medical professional liability insurer American Physicians Service Group Inc. (AMPH) agreed to be acquired by ProAssurance Corporation (PRA). Per the agreement, the shareholders of American Physicians will receive $32.50 per share in cash from the acquirer and the transaction is expected to close in the fourth quarter of 2010. Excluding one-time transaction and restructuring costs, ProAssurance expects the transaction to be accretive to its 2011 earnings.
American Physicians believes that ProAssurance will offer superior quality insurance protection for the policyholders as well as integrate its employees. The company also believes that its shareholders, who remained insulated even during the economic turmoil, will also stand to benefit from the merger. The share price of American Physicians leapt approximately 23.4% on Tuesday to close at $32.43 following the announcement of the acquisition.
American Physicians ended the second quarter with solid results aided by a decline in total expenses, strong policyholder retention and a decrease in pending claims.
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