April 2003 Quick Clips

Physician, Count Thyself, April 23, 2003

Businesses with fewer than 15 employees are exempt from the Americans with Disabilities Act. Always anxious to expand coverage of the Act, the EEOC wanted to count as employees doctors who are also shareholders in a professional corporation.

The case went to the Supreme Court, where the doctors argued that they were not employees but partners. The EEOC argued that the common-law "control" test should apply. That test looks at several factual matters (such as whether the organization can hire and fire the individual, or regulate and supervise his work) to decide whether an employer-employee relationship was created.

The Supreme Court sided with the EEOC, deciding by a 7-2 vote that the control test should apply. The case was sent back to the lower court for further fact finding.

Thus, even so seemingly simple a matter as counting employees to see whether a federal act applies can become so complex as to merit Supreme Court inquiry. Because the task of counting employees is so important (as it governs whether a given federal law even applies), it's vital to scrutinize the facts carefully before conceding federal jurisdiction.

Clackamas Gastroenterology Assocs., P.C. v. Wells, April 22, 2003 (S. Ct.)

Employers 2, Salts 0, April 1, 2003

by Frank L. Kollman

Two federal appeals courts have ruled that neutral hiring practices do not violate the National Labor Relations Act, even if the effect of those practices is to exclude most union members from being hired. Both cases, involving attempts by unions to salt a non-union workforce with union members committed to organizing that workforce, restore a little sanity to the ugly world of salting. In the first, the employer gave preference to applicants who worked for it before, who were referred by current employees, or who were referred by equal opportunity providers. International Union of Operating Engineers v. NLRB, No. 02-1044 (7th Cir., March 28, 2003). In the second, the company did not hire employees whose former wages were 30% above or below the company's current wage rate. Contractors' Labor Pool Inc. v. NLRB, No. 01-1393 (D.C. Cir., March 28, 2003).

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