HR Compliance

Should Independent Contractors Undergo Anti-Harassment Training? (Spoiler: Absolutely!)

By

Zachary Gregory

| Apr 4, 2018

Title VII of the Civil Rights Act of 1964 prohibits harassment in the workplace. All workers – no matter their classification – should be aware of  and comply with your organization’s harassment policies. Employers may be liable for harassment by its independent contractors, if they knew – or should have known – about the incident and failed to take prompt and appropriate corrective action.

The classification test

The classification of workers is one of the most siginificant decisions an employer can make. Utilizing independent contractors, as opposed to hiring employees, is an alternative for employers that could potentially save money on taxes, insurance, overtime and leave.

Unfortunately, this decision is not a simple one, and courts or agencies may disagree with the way your workers are classified. Depending on applicable laws, the test for whether the employer’s classification choice was correct may be different.

When determing whether an individual is an independent contractor or an employee for purposes of Title VII, a court would likely evaluate the hiring party’s right to control the manner and means by which the hired party’s work is accomplished. The factors relevant to this inquiry are:

  • the skill required
  • the source of the instrumentalities and tools
  • the location of the work
  • the duration of the relationship between the parties
  • whether the hiring party has the right to assign additional projects to the hired party
  • the extent of the hired party’s discretion over when and how long to work
  • the method of payment
  • the hired party’s role in hiring and paying assistants
  • whether the work is part of the regular business of the hiring party
  • whether the hiring party is in business
  • the provision of employee benefits
  • the tax treatment of the hired party

Therefore, employers should ensure their classification decisions are well-informed, as those decisions directly impact their Title VII exposure.

Employers’ responsibility for environment

Courts have held that an employer is responsible for sexual harassment, no matter who committed the complained-upon behavior: an employee, an independent contractor … or even a bird!

For example, when Judge Frank H. Easterbrook delivered his 2005 verdict for Dunn v. Washington County Hospital, he compared a hospital patient keeping a macaw in his room that only bit and scratched women, to Washington County Hospital being responsible for the hostile work environment created by a doctor working as an independent contractor.

According to Easterbrook, in both cases, the hospital was responsible for the decision to expose women to the working conditions affected by the offending doctor and the macaw, even though the former was an independent contractor and the latter isn’t an employee in any form.

In summary, it is the employer’s responsibility to provide its employees with nondiscriminatory working conditions. That includes ensuring that independent contractors are fully aware of applicable policies.

Disclaimer: This blog includes general information about legal issues and developments in the law. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and must not be taken, as legal advice on any particular set of facts or circumstances. You need to contact a lawyer licensed in your jurisdiction for advice on specific legal problems.

About the Author

Zachary Gregory

As a compliance attorney for Paycom, Zach Gregory monitors legal and regulatory changes at the state and federal levels, focusing on payroll and garnishment laws, to ensure the Paycom system is updated accordingly. He previously worked at a law firm as a tax attorney. He holds a bachelor’s degree from Oklahoma Christian University and a J.D. from Oklahoma City University. Outside of work, Gregory enjoys playing in the backyard with his two boys, and finding new restaurants with his wife and high school sweetheart, Kellyn.

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