AN EMPLOYEE BY ANY OTHER NAME?

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AN EMPLOYEE BY ANY OTHER NAME?

• 
  "Lionello R. Levi Sandri" Permanent Seminar
• Study and Research Laboratories
  Transnational Law and Juridical Translation
  Studies
• AN
  EMPLOYEE BY ANY OTHER NAME?
• 
  
• Professor Ron Brown
• Rome Conference
• November 12, 2009
• 
  
  
  

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WHO IS THE EMPLOYEE?

• Permanent Temporary
  Independent Contractor

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AN EMPLOYEE BY ANY OTHER NAME?

• What's in a name?
• That which we call a rose by any other name
  would smell as sweet. - William Shakespeare
• Introduction Who is an Employee?
• Can an employee by any other name still be an
  employee? An individual tells you, Im working
  for Microsoft. So, hes employed by Microsoft as
  an employee? Not necessarily.

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Dilemma Employee Definitions Vary

• Under a variety of contractual and statutory
  definitions he might be categorized as casual,
  temporary, part-time independent contractor, or
  a number of other exclusionary terms that render
  him ineligible for full or any employee rights
  and benefits under a variety of laws.

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VARIANCES MAY COST MONEY AND LABOR RIGHTS

• Microsoft Case
• Misclassification excluded thousands of employees
  from contract benefits reclassification by court
  ruling unexpectedly cost employer tens of
  millions of dollars
• And, it began the falling dominos phenomenon
  under tax laws and others

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Multiple Labor Laws and Jurisdictions

• Wide variances in employee definitions among
  multiple federal labor laws and 50 states
  definitions and disparate protections.
• In the European Union (EU), with 27 countries and
  as many languages, definitional consistency
  becomes even more problematic.

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Dilemma May be Three-Fold

• (1) changing employment relationships
• (2) varied and inconsistent definitions under a
  variety of labor and employment laws and
• (3) lingual variances arising from translations
  or applications of the employee term in
  different jurisdictions under various labor laws.

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Question Is does the legislative language
capture the intended substance of the
legislation?

• It is still not enough for language to have
  clarity and content... it must also have a goal
  and an imperative. Otherwise from language we
  descend to chatter, from chatter to babble and
  from babble to confusion. Rene Daumal
• Policy decision or a loose language problem?
• Laws written to allow bifurcation and
  diversification of employee status or did it
  occur through translations, interpretations, and
  applications of the laws?

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Determining Employee Status


Before classifying a worker, two questions to
ask (1) Legal test(s) used to determine the
status of an individual? (2) Significance of
not being an employee under U.S. federal and
state laws and common-law contract definitions
(disparities and costs) tax loss of 2.7 billion
per year (in 2006 dollars) from misclassified
employees employer costs lower many employees
excluded from full labor rights and benefits




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Variables in Employment Relationship

• (a) working hours (b) duration (c) location
  and, (d) nature of employment.
• May translate into worker classifications
• (1) Regular employees or
• (2) Contingent (or atypical employees) (agency
  temporary workers contract company workers
  direct-hire temporary workers on-call workers
  self-employed workers standard part-time workers)

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Global Issue, including EU and U.S.

• EU recognizes contingent employee problem, as
  member states are largely responsible for most
  definitions of employee.
• In EU, employee has been defined as any
  person, whom, in the Member State concerned, is
  protected as an employee under national
  employment law (Council Directive 77/187,
  consolidated in Directive 2001/23)
• The result is that certain workers will qualify
  for protection of EC law as employees in some
  Member States, but the same workers will not be
  protected in other Member States.

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Language is More than Words

• Recent book on legal language in EU labor laws,
  notes
• When we speak of legal language', we refer
  to a mode of communication that works hard to
  convey a degree of precision that clearly
  establishes the extent and limits of rights and
  obligations between parties.
• This endeavor must strive to overcome
  numerous obstacles -- notably societal context
  and ideology -- that are ineluctably present in
  language itself. And when legal bonds apply
  internationally, problems of translation add yet
  another and more complex dimension.

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U.S. Experience Examples of what to avoid?

• Employee Status under Contracts and Statutes
  (at will and regular employees labor rights)
• Exemptions, Misclassifications, and Trouble
  Spots(10 million independent contractors and 5
  million temporary workers)
• Contingent Workers (proportion remains relatively
  constant at about 30 percent, with a high
  percentage (particularly part-time workers) being
  women.)
• Falling Domino Phenomenon (FedEx Case)

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Legal Tests to Determine if Employee

• Misclassification costs 3 Billion annual tax
  revenue losses
• Two tests, depending on which labor law and
  jurisdiction
• 1. Right to Control (E.g., I.C.
  Supervisor)
• 2. Economic Realities (E.g., FLSA)
• 3. IRS Multi-factor Test for I.C.

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HARMONIZING EMPLOYEE DEFINITION

• Changing employment relationships exclude
  millions of workers from fair and full protection
  of labor and employment laws
• Uniformity of the definition possible? (attempts
  in UK and U.S. for I.C.)
• Some exemptions and exceptions needed (e.g.
  employed as executive, supervisor, or I.C.,
  but why not uniform definitions?

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MODEST PROPOSAL

• Use tax law definitions of employee for labor
  and employment laws with presumptive coverage
  for all within definition including regular and
  contingent employees, absent clear exemptions
  (statutory or K)
• Create tax law definitions for exempted
  categories with presumptive coverage if unclear
• Authorize legislative modifications permitting
  proportionality of benefits where needed (e.g.,
  FMLA and UI work duration qualifications) but
  maintaining broad coverage using uniform employee
  and exemption definitions

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Uniform Enforcement (with a bite)

• Advantage of tax law is that all employers must
  comply with its definition regardless of labor
  law interpretations (perhaps persuading employers
  to follow the one law and under proposal,
  simultaneously comply with labor laws)
• IRS enforcement authority is well known and
  respected (if not feared)
• This approach diminishes the domino effect
  caused by unexpected or misclassified employees
• Enhances labor protections to formerly
  disenfranchised employees

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INTEGRATING AND HARMONIZING CONTINGENT EMPLOYEES
INTO PROECTED EMPLOYEE STATUS QUESTION OF
LANGUAGE OR SUBSTANCE?

• "When I use a word," Humpty Dumpty said in rather
  a scornful tone, "it means just what I choose it
  to mean -- neither more nor less." "The question
  is," said Alice, "whether you can make words mean
  so many different things." "The question is,"
  said Humpty Dumpty, "which is to be master - -
  that's all.
• Employee each jurisdiction can make that word
  mean just about anything it wants it to be, by
  legislation, by use of legal tests, or by
  exemptions, exclusions, interpretations or
  translations.
• Integration and harmonization of employee
  definitions require common vocabulary
• Language will control, but must survive multiple
  interpretations and translations

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FINDING FAIR AND SUBSTANTIVE POLICIES

• 1. Need substantive reform to inclusively embrace
  workers who are true employees and accord them
  legal rights and benefits provided by labor and
  employment laws
• 2. Find and use appropriate choice of language to
  diminish variances in interpretations and
  applications.
• 3. Achieve by simple, straight-forward language
  with a common source of reference through a list
  of definitions and factors to be used in all
  cases of applying or interpreting the word
  employee or exemptions (E.g., in the U.S. -
  Independent Contractor or use tax laws)

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CONCLUSION HARMONIZING SUBSTANCE AND LANGUAGE

• Use uniform terminology to integrate and
  harmonize employee definition embracing
  contingent employees
• Create legal presumption of inclusion using
  common definitions
• Having multiple laws, jurisdictions and languages
  (in EU), first requires substantive agreement on
  policies, followed by words clear in any forum.
  The language of the law must speak for itself
  while diminishing the chances of discretionary
  misinterpretations, mischievous
  misclassifications, or conflicting
  classifications. Use common illustrative factors.