The District of Columbia Court of Appeals delved in to the finer points of law firm management this morning, issuing a decision (PDF) that explores what makes a worker - in this case, a legal secretary - an employee entitled to certain benefits, as opposed to an independent contractor.
Washington solo practitioner Robert J. Hickey, arguing on his own behalf, challenged an administrative ruling awarding his former legal secretary, Mary Bomers, unemployment compensation. The appeals court sided with Hickey and reversed the administrative decision, but, over Hickey’s objections, upheld Bomers' employee status.
Hickey hired Bomers in January 2006, agreeing to pay her $18 per hour. Bomers did not receive any benefits and was responsible for filing her own quarterly tax returns. Her salary was reported on Hickey’s tax return as “contract labor.” Hickey fired Bomers in January 2009, citing the fact that she had missed too much work without notifying him or making other arrangements.
Bomers filed for unemployment benefits with the city’s Department of Employment Services, which denied her request based on Hickey’s claim that she had been an independent contractor, and not an employee. Bomers appealed to the Office of Administrative Hearings, which not only found that Bomers was an employee, but that she was eligible for benefits since she wasn’t fired for misconduct.
On appeal to the city’s highest local court, Hickey argued that because Bomers was responsible for handling her own tax returns – the form she used, Form 1099, is known as the “independent contractor’s tax return,” the court pointed out in a footnote – the evidence pointed to her being an independent contractor.
The court disagreed, finding that all signs pointed to Bomers being Hickey’s employee: Hickey hired Bomers directly, paid her an hourly rate and controlled her performance on a daily basis. However, the court found that Bomers’ behavior did meet the criteria for simple misconduct, since Bomers was repeatedly out of work, failed to give timely notice when she would be absent and also failed to give Hickey a sense of when she might be coming back.
Hickey did not immediately return a request for comment.
Bomers was represented by James Klimaski of Washington’s Klimaski & Associates, who said he thought the court overlooked the fact that his client’s absenteeism was because of medical issues. However, Klimaski said the court’s ruling on Bomers’ status as an employee was “quite important.”
“There are an awful lot of people in that situation who are pushed into the idea that they’re independent contractors, when of course they’re employees,” Klimaski said. “It’s a very abusive situation for the employees.”