Beware: When it comes to judging Title VII and retaliation claims, courts may treat as employees many of the individuals you consider independent contractors. That’s true even if they are licensed professionals—such as physicians—working at your facility.
Recent case: Dr. Barbara Salamon, a gastroenterologist, was a contracted physician with Our Lady of Victory Hospital. For several years, she got excellent peer reviews and support. Then she alleged that a hospital administrator made sexual advances and harassed her. She complained to .
Suddenly, those peer reviews turned testy, and she was told she had to participate in a “re-education program” or risk losing her hospital privileges. She sued, alleging retaliation for reporting the harassment. The hospital said she was an independent contractor, and therefore it wasn’t liable for any harassment.
The 2nd Circuit reviewed the evidence and concluded that, under the facts, Salamon was more like an employee than an independent contractor. While she had her own practice, she also had certain obligations to the hospital, including on-call time in the ER. She couldn’t turn down patients, and her practice was highly dependent on access to the hospital’s equipment. The court sent her retaliation case back to the lower court for trial. (Salamon v. Our Lady of Victory Hospital, No. 06-1707, 2nd Cir., 2008)
Final note: This decision reflects a new judicial attitude toward so-called independent contractors. Employers still may want to minimize their liability by treating some individuals as independent contractors. But they’re finding out what counts in court are details about how the person does her work—not simply labeling her as a contractor. The organization’s control over the work is the key.
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