Freedom and Responsibility

The "Bloggers' Panel" convenes this afternoon at the WCI Annual Conference in Orlando, FL.

Attacked by a Mark Walls bobblehead!

Mark Walls of Safety National, Bob Wilson of Workerscompensation.com, and I will be talking about various issues such as medical marijuana, industry public relations, constitutionality of work comp, and all of the other usual, pressing issues of the day.

One of the topics we will be covering that's been hot in the press recently is the issue of the "sharing economy" and who's responsible for when someone gets injured.

This of course means talking about independent contractor versus employee status.

For most employers, this really means what the tax status is of a worker - 1099 or W2.

For us in workers' compensation this means whether the amorphous standards that are used to determine status are met with sufficient degree to meet one or the other.

Of course, shared economy companies have blurred even further those foggy standards.

Court cases are all over the place on the issue, because technology (whether digital or otherwise) is always ahead of the law.

What this really boils down to, however, is freedom of choice: can I hire who I want? can I work for who I want?

A recent Tennessee case illustrates this in another sense - whether an employer can discriminate in the hiring process against a job applicant whom the employer thinks may be a liability down the road.

There are many states that prohibit discriminating against prospective employees on the basis that one may have had a work injury in the past.

This doesn't mean that an employer doesn't discriminate on that basis - only that an employer will find another excuse to hire someone else. Most managers thusly are trained not to reference injury histories in their communications in the hiring process.

But a vice president at Hospital Housekeeping Systems noted in a memorandum that Kighwaunda M. Yardley was a "workers' comp claim waiting to happen," and he did not think it prudent to hire her.

Yardley had worked as a housekeeping aide at the University Medical Center for more than 14 years before suffering injuries to her shoulders and wrists.

She underwent carpal tunnel release surgery in early 2012 and returned to work in a light-duty capacity. The hospital placed her in a position in its materials management section in order to accommodate her medical restrictions.

Meanwhile, the hospital had entered into a contract with Hospital Housekeeping Systems for HHS to take care of its janitorial needs. The terms of the contract required UMC to interview the members of the hospital's existing housekeeping staff so that they could keep their jobs, as employees of HHS instead of UMC.

Once Yardley's doctor released her to return to work on full-duty, she told the hospital that she wanted to go back to her old job in the housekeeping department. The hospital told her to speak with HHS about transitioning over, the way her colleagues had done.

Yardley met with Michael Cox, a vice-president of HHS. He allegedly told Yardley that the company would not hire anyone receiving workers’ compensation benefits.

Cox is also the author of the damning memorandum.

Yardley sued HHS and lost at the trial level. The judge said this was a Supreme Court issue.

The Tennessee Supreme Court said that since an employment relationship had not yet been established that state law did not protect Yardley.

The law in Tennessee is that "job applicants and prospective employers may freely choose whether to enter into the employer-employee relationship," and while "[a]n at-will employee may not be fired for taking an action encouraged by public policy," the "failure to hire cannot be equated with termination of employment, as employees and job applicants are on different footing."

The employer-employee relationship "involves mutual acquiescence, and certain levels of trust and dependence are created upon its formation," the court explained. "Both parties have rights and responsibilities that naturally flow from that relationship and which are not present before the relationship is formed."

Since liability under the Workers' Compensation Act is premised on the existence of employer-employee relationship, the court said up until the relationship is formed, the act provides a worker with no protection.

Thus, because Yardley was "merely a job applicant" and not an "employee," the court said HHS had no obligations to her under the act.

This gets to the heart, in my mind, of what the controversy is with shared economy employment: someone wants a service, someone can provide that service, and whether both want to engage in some relationship is a decision that then takes on characteristics defined by contract (mutual acquiescence) and law.

In other words, the basis of all work relationships, at least in the United States, is consent. The employer is free to hire someone. The employee is free not to work for someone. Both have the freedom NOT to engage in a relationship.

When both exercise their freedoms TO engage in a relationship is when the law oversees it - first in contract, and then in law.

Problems arise when one or the other feels they are being taken advantage of, or when an expectation isn't met.

The difficulty with the law is preserving the freedoms that made America the economic powerhouse that it is, while protecting the people whose labor and service made it that way.

With freedom comes responsibility. The more freedom one has, the greater one's responsibilities are.

Sometimes we have difficulties accepting that reality.