Employer v. Employee Flashcards
Bona Fide Partner
Law traditionally says they are an employer and not an Employee
When can a Partner assert a retaliation claim?
Partners may assert FEHA claims for retaliation for opposing harassment of employees
Is a BFP a protected person under retaliation section of FEHA
Yes.
What is the guidepost for employee status?
Control is the guidepost for employee status.
What should the court examine when trying to distinguish between an employer or employee (Bona Fide Partner)
Whether the individual acts independently and participates in managing the organization, or whether the individual is subject to the organization’s control
What are the 6 Factors to determine if an individual is an employee or employer?
- Whether the organization can hire or fire the individual or set rules and regulations of the individual’s work.
- Whether and to what extent the organization supervises the individuals work.
- Whether the individual reports to someone higher in the organization.
- Whether and to what extent the individual is able to influence the organization.
- Whether the parties intended that the individual be an employee, as expressed in written agreements or contracts.
- Whether the individual shares in the profits, losses, and liabilities of the organization.
Does the fact that there is an agreement that says they’re a partner or an employee control the result when trying to define if they are an employee or employer?
No, the fact that an agreement says they’re a partner or an employee doesn’t automatically make it so. The situation must prove it.
Can individuals be liable for discrimination? retaliation? harassment?
individuals can not be held liable for discrimination or retaliation. They can be held liable for harassment.
Why can’t individual defendant’s be held liable under retaliation or discrimination claims?
b/c we want people to be able to make personnel decisions without the fear of personal liability
Discrimination.
Basic Example.
Who has standing?
Can you sue individuals?
“You didn’t hire me; you fired me; you demoted me; you didn’t give me a promotion because I’m a “PERSON”. Can NOT sue individuals.
Retaliation.
Basic Example. (Not asking for the prongs)
Who has standing?
Can you sue individuals?
B/c I made a complaint about workplace that violates the statute, you demoted/fired me.
A “person” has standing.
You can NOT sue individuals.
Harassment.
Basic Example.
Who has standing?
Can you sue individuals?
You made the workplace a hostile work environment for me because of my _______ (race/gender/age). “Employee, applicant, unpaid interns or volunteers, or persons providing services pursuant to a contract have standing. (There must be an employee-employer relationship.) You CAN sue individuals.
Can bona fide person sue for harassment?
No, they can not sue for harassment because 12940 does not use the term “person.”
Is harassment of a partner by another partner prohibited under FEHA?
No. Harassment of one partner against another partner isn’t prohibited by FEHA.
Retaliation
A person engaged in protective activity under FEHA and suffered an adverse employment action.
