After ten years of successful employment, Sharon Smiley was fired from her job as a receptionist for a local real estate agency, incredibly, for working too hard.  Her workload had become increasingly heavy and, as a result, she decided to work through her lunch break.  She knew her employer’s policy required that she clock out for lunch and so she did.  Reasonably believing, however, that once she clocked out what she did with her time was her business, she sat at her desk and continued to work on a special project a supervisor had assigned her that morning.  She had not planned on eating, and thought she would use her time to get the project done. 

Ms. Smiley’s supervisor asked her to leave her desk but Ms. Smiley refused, explaining that she knew she could not eat her lunch at her desk, but she was not eating.  Ultimately, the company terminated Ms. Smiley’s employment for insubordination and contested her right to obtain unemployment benefits. 

The Illinois Department of Employment Security sided with the employer and held that Ms. Smiley’s insubordination amounted to misconduct, denying Ms. Smiley benefits.  Representing herself, she appealed that decision three different times internally, but was ultimately unsuccessful. 

Finally, Ms. Smiley appealed her case to the Circuit Court of Cook County, which overturned the decision denying her benefits and, in January of 2012, the Illinois Appellate Court for the First District affirmed that decision.  The Courts’ decisions confirmed what the rest of the world knows is basic common sense – attempting to work through lunch, even if in violation of company policy, is not willful or wanton misconduct indicating a disregard for the employer’s interests. 

While I understand that Illinois is an at-will employment state and that the employer was allowed to terminate Ms. Smiley’s employment for any reason at all (so long as that reason was not discriminatory or otherwise unlawful), the notion that an employer would terminate a long-term, hard-working employee for attempting to go above and beyond by completing a project on her own time really angers me.  But the fact that her employer chose to contest her right to unemployment benefits after it terminated her for working too hard simply shocks the conscience – especially given the economic climate of the last few years and the dearth of employment opportunities out there. 

My hat’s off to Sharon Smiley for having the courage and conviction to call her employer on its wrong-minded efforts to deny her benefits.  Congratulations on a hard-fought win!

To read more about Ms. Smiley’s story, visit: http://abcnews.go.com/Business/chicago-woman-fired-skipping-lunch-wins-unemployment-benefits/story?id=15370896&page=2

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            The IRS has recently implemented a program called the “Voluntary Classification Settlement Program” (“VCSP”).  The program allows eligible employers to pay a small sum in order to obtain partial relief from federal employment taxes for previous mischaracterizations of workers as “independent contractors” when such individuals should have received classification as “employees.”  The announcement of this program undoubtedly marks a positive development for employers who have engaged in this type of mischaracterization and who now wish to reduce their tax liability and avoid IRS audits.  However, from an employee perspective, the fact that this sort of misclassification remains so frequent and widespread that the IRS has found a need for such a program in the first place educes a timeless question in employment law: why does the distinction between “independent contractor” versus “employee” even matter?

            
            The implications of whether you constitute an “employee” versus an “independent contractor” are immense.  Namely, only qualified “employees” are entitled to statutory protection under such legislation as Title VII of the Civil Rights Act, the Americans with Disabilities Act (“ADA”), the Family and Medical Leave Act (“FMLA”), the Age Discrimination in Employment Act (“ADEA”), the Fair Labor Standards Act (“FLSA”), the Illinois Workers’ Compensation Act, the National Labor Relations Act (“NLRA”), and the Employee Retirement Income Security Act (“ERISA”). 

           
            Each statute has its own definition of qualified “employee.”  In general, the employer’s decision to simply label an individual as an “employee” or “independent contractor” will not serve as the dispositive factor for determining that individual’s employment status.  Instead, courts use a number of different tests depending on the particular statute at issue to determine whether someone meets the precise, legal definition of “employee.”  Each of these tests relies on a variety of factors.  However, an employer’s decision to label someone as an “independent contractor” can indeed impose practical and legal hurdles for an individual attempting to gain protection under an employment statute.  In short, the determination of whether someone constitutes an “employee” or an “independent contractor” can be a complex and nuanced exercise.  Nonetheless, qualifying as an “employee” under a particular statute can often mean the difference between having legal recourse against your employer and having none.  Hence, the distinction between “independent contractor” versus “employee” matters a great deal.  The emergence of the IRS’s VCSP program stands as yet another reminder of that fact.

I passed a billboard the other day which said, "The best employee benefit is a happy employee."  I can't remember what company adopted this slogan but I can tell you that I know this to be unequivocally true.  Our next few blog posts will cover what we have found to be the top five keys to employee happiness. 

One:  Trust

I and the people in our office spend all day, every day, talking with employees, former employees or people who wish they were someone's employee and we hear plenty about what employees want, what infuriates them and what makes them happy.

Surprisingly,  money is rarely even at the top of the list.  What we find employees want, more than anything, whether they are waitresses or executives, is to be treated like trusted competent individuals.  Contrary to many employer's beliefs, employees are not all idiots, are not out to cheat them or to find ways to somehow undermine their profits.  They don't need to be watched liked children and monitored like prisoners.  Just tell them what you want them to do, tell them that you believe they can do it and then let them do it.  There are few things more demeaning than being micromanaged.  If they fail, kindly correct them.  If they continue to fail then take action.  I believe most employers would be shocked to learn that if an employee feels as if their employer has confidence in them the employee will almost always rise to the occasion.  Everyone wants to feel valued.

Next up:  Two:  Flexibility