From my perspective, the federal Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. 2601 et seq., is one of the best pro-employee laws on the books. The law generally provides for medical leave to those persons who have been employed for more than a year at a company that employes 50 or more employees within a 75 mile radius. The FMLA also generally provides for restoration to the same or equivalent position at the same rate of pay after leave is taken. And, the FMLA also generally prohibits a company from terminating an employee by considering FMLA covered absences when terminating the employee. Finally, as discussed below, the FMLA generally prohibits a company from terminating an employee in retaliation for the employee taking leave.

Earlier this year I arbitrated a FMLA case on behalf of a client. We finally received the arbitrator’s award last week. The arbitrator found that the company illegally “interfered” with my client’s FMLA rights by considering/taking into account his FMLA covered absences when the company terminated his employment. In addition to damages, the company was ordered to pay attorney’s fees. Without the FMLA, my client would have been without a remedy to challenge his termination.

Also, in a noteworthy decision released by the Sixth Circuit Court of Appeals on 8/15/08, my friend and colleague Nashville attorney Doug Janney prevailed in a hard fought FMLA case. The case is Bryant v. Dollar General Corp., 538 F.3d 394 (6th Cir. 2008). Click for PDF. The court affirmed the jury verdict that Doug obtained for his client rejecting the company’s argument on appeal that the plain language of the FMLA does not prohibit retaliation for taking FMLA leave. The court unanimously held that Dollar General’s reading of the FMLA would essentially render the FMLA a nullity if an employer could terminate an employee for taking covered medical leave. Thus, there is no question that (in the Sixth Circuit at least) the FMLA prohibits employers from taking adverse employment actions against employees based on the exercise of FMLA leave.

A common question in my practice is whether a worker is properly characterized as an employee or independent contractor for purposes of overtime pay eligibility under the federal Fair Labor Standards Act (FLSA). This is because an “employee” is entitled to receive overtime compensation under the FLSA while an “independent contractor” is not entitled to receive overtime compensation.

A recent decision from the Middle District of Tennessee explains that an employer cannot circumvent its obligations to pay its workers overtime pay by labelling the workers as independent contractors. Wilson v. Guardian Angel Nursing, Inc., 2008 WL 2944661 (M.D.Tenn. July 31, 2008). As the Wilson court notes, explicit contractual agreements in which the worker affirmatively acknowledges that he/she is an independent contractor cannot defeat overtime pay eligibility under the FLSA. In other words, a worker cannot waive employee status under the FLSA. Therefore, even if a worker is forced to sign an agreement acknowledging that he/she is an independent contractor, this fact will not preclude a finding of employee status thus enabling the worker to receive overtime pay compensation under the FLSA.

A variety of factors are considered in determining whether the worker is properly characterized under the FLSA as an employee or independent contractor. Some of the factors considered include:

(1) the permanence of the working relationship between the parties;

(2) the degree of skill the work entails;

(3) the extent of the worker’s investment in equipment or materials;

(4) the worker’s opportunity for profit or loss;

(5) the degree of the alleged employer’s control over the worker; and,

(6) whether the service rendered by the worker is an integral part of the alleged employer’s business.

In sum, determining whether a worker, who has been labelled an “independent contractor”, is actually an “employee” eligibile for overtime under the FLSA is a fact-intensive question. And, as the Wilson court noted in determininng that the nurses who brought the case were “employees” eligibile for overtime under the FLSA, employers can’t simply “contract around” their obligations to pay overtime under the FLSA.