Flexible, Nontraditional - and Unprotected

IHAVE seen the future work force and it is us: self-employed, project-focused, knowledge-based specialists. But there's a catch -

a loophole a mile wide in civil rights and labor laws that leaves us unprotected.

The 25 percent of us who are now self-employed, independent contractors, temporary, seasonal, or contingency workers, fall outside the jurisdiction of most protective legislation. Whether we became part of this nontraditional work force through corporate downsizing or individual initiative, we no longer fit the traditional definition of employee - the definition our system of protective legislation is built on.

So go ahead, harass us. It's allowed.

No one anticipated this, least of all the framers of the 1964 Civil Rights Act. Born of the work of Martin Luther King, Jr. and the struggle for civil rights, the Act was designed to prevent discrimination on the basis of race, color, religion, sex or origin. Title VII of the Act outlaws employment discrimination.

In 1964, most workers were protected. They labored 40 hours a week for a single employer. They worked hard, met deadlines, pleased their employers, got paychecks. Unlike us, they also got benefits, workers' compensation, employer contributions to Social Security and Medicare taxes, unemployment insurance, pension benefits, and, thanks to Title VII and other legislation, protection from discrimination and harassment, and equal pay.

Lucky them. They were employees. The courts say we're not.

This is what Caryn Wilde, owner of a secretarial service called Executive Suites on First in Willmar, Minn., has learned the hard way. In 1992 and 1993, Ms. Wilde filed suits in federal and state courts seeking protection under civil rights and human rights legislation, alleging she had been sexually harassed in the workplace.

In January 1993, the US District Court ruled that Wilde was not protected under Title VII of the 1964 Civil Rights Act because she was not an employee within the meaning of the statute.

Wilde appealed the court ruling, but a year later the 8th Circuit Court of Appeals upheld it: ``Title VII protects workers who are `employees,' but does not protect independent contractors.''

Who is an employee? Not Wilde, not me, not 35 million other American workers. The ``employees'' who are protected are those who fit a narrow, hazy definition of ``employee.''

At the federal level, says IRS Publication 937, ``the IRS has identified 20 factors ... to determine whether sufficient control is present to establish an employer-employee relationship. These factors should be considered guidelines.''

This is not an exact science, even for the IRS. The main test for the IRS is control: What degree of control does the employer exercise over the employee?

Wilde's home state of Minnesota has no statutory definition of independent contractor. A legislative report found it is common for a working relationship to show some of the characteristics of both employee and independent contractor. ``The determination of status,'' says the report, ``depends on a sometimes imprecise weighing of a number of factors.''

IMPRECISE as the definitions may be, they were good enough for District Judge John Weyrens, who ruled on Feb. 4 that while Wilde could pursue other claims, including assault and battery, emotional distress, interference with business, refusal to do business, she could not pursue allegations of sexual discrimination under the Minnesota Human Rights Act.

Wilde is not an employee. So under existing state and federal law, she cannot be sexually harassed.

Nontraditional workers like Wilde are the fastest growing and most vulnerable segment of the labor force. These workers fall into four categories: the self-employed, many of them independent contractors; voluntary part-timers, who work part-time by choice; involuntary part-timers; and temporary workers.

According to former Assistant Secretary of Labor Policy Jack Donahue, most troubling is the ``increasing vulnerability of large chunks of the labor force - women, minorities, the underskilled or undereducated with weak labor force attachments, bouncing from one crummy job to another.'' This sector of the work force is ``overwhelmingly young and female,'' adds Mr. Donahue, and growing at a rate of 4.8 percent a year compared with 1.8 percent annual growth for the overall labor force.

Sen. Howard Metzenbaum (D) of Ohio hopes to introduce legislation that will extend legal protection to these women and everyone else in the flexible labor force.

For Caryn Wilde, though, it's too late. ``I don't have a life,'' says the Minnesota woman, ``I have a lawsuit.''

Wilde, who has spent over two years in litigation and is $100,000 in debt, is selling both her business and her home. Her life as owner of Executive Suites on First is over.

Call it what you will: contingent work force, flexible work force, nontraditional work force. It's still a work force, and the things we said were wrong before - harassment and discrimination - are still wrong.

Until the law changes, all that's certain is the fact of an unprotected work force. The Opinion/Essay Page welcomes manuscripts. Authors of articles we accept will be notified by telephone. Authors of articles not accepted will be notified by postcard. Send manuscripts by mail to Opinions/Essays, One Norway Street, Boston, MA 02115, by fax to 617 -450-2317, or by Internet E-mail to OPED@RACHEL.CSPS.COM.

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