Journal of Business and Behavioral Sciences Volume 23, Number 1 issn 1946-8113 Spring 2011 inthis issue

Previous studies by Yamada and others have presented proscriptive findings or public policy implications. The contribution that this study makes is to identify and analyze public sector litigated cases dealing with bullying. Our research extends Yamada‘s work, in that he has not specifically analyzed litigated bullying cases in the public sector. Wide varieties of circumstances are evident where bullying has occurred, and the more complex nature of interactions and activities in the public sector make it especially challenging from a policy-capturing standpoint. In this study, all cases have been drawn from federal courts, which clearly interject a bias into the cases. If cases from state courts were included, intentional infliction of emotional distress and interference with the employment contract might emerge as legal bases for the decisions rendered.

The sixteen cases in the study are intended to be illustrative only. While sixteen does not seem like a significant number, the cases are indicative of what appears to be a growing recognition that public sector victims who believe they have been bullied can assert their legal rights. We really do not know how widespread the problem is, but from the breadth of instances in these sixteen cases, it may well be quite widespread in the public sector. Moreover, these cases reveal that the issue of bullying is not a matter of an occurrence in a single organizational context, such as a school or prison.

The cases in the study reflect a variety of types of bullies, victims, organizations, and outcomes. Often, victims will prevail. The cases reflect litigation under a variety of different statutes that afford legal protection. These cases are cases that were not resolved through internal grievance mechanisms, or through protection afforded by the presence of unions or civil service regulations. Nonetheless, thus far there is little evidence of a union response, but the greater incidence of unionization in the public sector today, especially at the federal level, suggests that workplace bullying and its legal consequences could be an area of significant opportunity and responsibility for the public sector unions.

The totality of cases that actually involve instances of bullying are far greater in number than those reported in this article. This may be due to the absence of specific protections and the opportunity for bullies to exercise rights

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afforded them under various other laws. Additionally, cases may be litigated that do not use the term ―bully‖ but may be delineated as ―harassment‖ or ―aggression‖ or ―mobbing‖ or ―abuse.‖ It can very well be that, given federal and state anti-discrimination laws, most employees will fall into one or more protected classes and will litigate accordingly, thus further reducing the perception of the magnitude of bullying.

The role that these cases will play in setting precedents that encourage additional victims to come forward should not be underestimated. Thus, it also can be anticipated that there will be increased managerial responses to deter bullies. Given the evident difficulties created in morale, productivity, and discomfort, legislation may be required.

The cited cases also show that bullying by public sector managers is now being litigated, and at a rate that is escalating. According to the LexisNexis Academic Legal Data Base retrieved September 25, 2009, in the time period from 2005 to 2009 there were 405 cases in Federal Courts, while from 2000 to 2004 there were 226. The cases also suggest that management is not always being sustained in its actions. The cases in the study reflect a variety of types of bullies, victims, organizations, and outcomes. And it is not only a matter of whether management is sustained, but it is the legal costs, the damage to public image, and the resultant lowered employee morale that makes a difference in organizational effectiveness.

While currently there are no specific laws prohibiting workplace bullying, there are numerous tangential laws that could be used as the basis for litigation as shown in the cases discussed previously. Training should be provided to familiarize managers and employees with the possible legal consequences. In addition, other types of training can help preemptively alleviate the problem. These types of training programs could include identification of the nature of the problem of bullying in all of its different facets, training in role conflict resolution, and the use of the internal complaint/grievance process to give voice to the victims of bullying.

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Nicholls State University

Every year there are numerous disputes regarding the classification of workers as independent contractors or employees, and some of these disputes often end up in federal court. Despite efforts made by the IRS, the General Accountability Office has estimated that as many as 38% of employers misclassify workers as independent contractors (CFCW 2004). The issue is likely caused by conflicting interests in the employer/employee relationship, affecting the amount that the employer would have to pay for employment taxes and benefits depending on how these individuals are classified. An employer that classifies its workers as independent contractors does not have to pay employment taxes and other benefits on those workers. In order to combat the misclassification of workers, the IRS uses audits that often result in the reclassification of workers from independent contractors to employees. In the event that reclassification occurs, employers can be forced to pay back payroll taxes, including penalties and interest. In some instances, the employer can also be held liable for back benefits, such as overtime pay, retirement contributions, and medical insurance. In the end, the employer can be responsible for paying an amount that is much greater than the original liability. The purpose of this paper is to provide information that is necessary to accurately determine whether a worker should be classified as an employee or an independent contractor. Additionally, this paper offers several illustrative examples and the courts‘ rulings on several cases where this employee vs. independent contractor controversy has occurred.

Every year there are numerous disputes regarding the classification of workers as independent contractors or employees, and some of these disputes often end up in federal court. In order to prevent these disputes, the Internal Revenue Service (IRS) has developed various forms and publications on the subject, and has made them readily available to all U.S. employers through its offices and website. Despite the efforts of the IRS, the General Accountability Office has estimated that as many as 38% of employers misclassify workers as independent contractors (CFCW 2004). The issue is likely caused by conflicting interests in the employer/employee relationship. An employer that classifies its

Journal of Business and Behavioral Sciences

workers as independent contractors does not have to pay employment taxes and other benefits on those workers. To be more specific, the employer does not have to pay FUTA, SUTA, FICA, retirement, and insurance expenses on independent contractors. The result of the employer classifying its workers as independent contractors is reduced costs, resulting in an increased profit margin. Unfortunately, the increase in profits for the employer often comes at the expense of its workers. Although workers classified as independent contractors are able to deduct business expenses in order to reduce tax liability, they become responsible for paying taxes on wages earned, as well as paying insurance and retirement costs. In fact, an independent contractor is also required to pay the employer‘s share of FICA. These additional costs will often outweigh the perceived benefit of reduced tax liability, which has the potential to leave many workers without insurance and retirement.

In order to combat the misclassification of workers, the IRS uses audits that often result in the reclassification of workers from independent contractors to employees. In the event that reclassification occurs, employers can be forced to pay back payroll taxes, including penalties and interest. In some instances, the employer can also be held liable for back benefits, such as overtime pay, retirement contributions, and medical insurance. In the end, the employer can be responsible for paying an amount that is much greater than the original liability. Because of the increased liability, employers must take greater care when determining whether workers are employees or independent contractors.

Although there has been a lot of research on the worker classification issue, the number of recent court cases in this area suggests that many businesses are still misclassifying workers. Accordingly, there is a need for additional guidance in this area. The purpose of this paper is to provide information that is necessary to accurately determine whether a worker should be classified as an employee or an independent contractor. Though this classification is often easy to determine, there are many instances when it can become difficult to make the distinction. Therefore, it is important for decision makers to be well informed in making these decisions in order to avoid the liabilities associated with misclassification. The next section of this article provides definitions of independent contractors, statutory employees and common law employees. In the third section, a set of illustrative examples will be used to allow the reader to test the knowledge gained from this article. Concluding remarks are provided in the last section.