Today, the Court of Appeals reversed an Office of Administrative Hearings order awarding unemployment benefits to a fired legal secretary. There were two main issues the Court had to decide in this case: (1) whether the fired secretary an actual employee or an independent contractor, and (2) whether the Administrative Law Judge (ALJ) had erred in finding that the secretary was not terminated for “misconduct.”
The ALJ had found that the secretary was in fact an employee and not an independent contractor (an important distinction as she would not have been eligible for unemployment benefits if an independent contractor) and found that the secretary’s “absenteeism” did not constitute misconduct. The ALJ thus awarded unemployment benefits.
Today, the Court upheld the finding that the secretary was in fact an employee and not an independent contractor. However, the Court reversed the ALJ’s finding that the secretary had not been fired for “misconduct” and thus reversed the award of unemployment benefits. The Court concluded that excessive absenteeism and a failure of the secretary to notify her boss as to when she would be able to return to work after not showing up due to a claimed hospital illness constituted misconduct.
A seemingly small and ordinary case, there are some important lessons for any employer and employee in the District of Columbia it helps teach:
1. The fact that an employee files an IRS 1099 form does not serve to transform an employee into an independent contractor. In this case, the legal secretary had filed independent 1099 forms with the IRS and her boss paid none of her taxes. As the Court (citing Judah v. Reiner, 744 A.2d 1037, 1041 (D.C. 2000)) pointed out, the 1099 form is often reffered to as the “independent contractor’s tax form.” Nevertheless, it was not enough to undermine other factors that weighed in favor of her being an employee. This holding serves as an important reminder to employers who are looking to avoid tort or contract liability. The mere filing of 1099 tax returns will not lead to a classification of an employee as an independent contractor.
2. Excessive absenteeism does constitute misconduct. Although misconduct and Gross Misconduct are categorized differently as reasons for terminating an employee (and require different standards of proof for an employer). Nevertheless, they both have the same end result. If you were terminated for either reason, you will be denied unemployment benefits. This is an important lesson for all employees in this wretched economy.
3. If you are an employee who faces a medical emergency requiring a prolonged absence from work, you need to inform your employer and keep your employer up to date on when you will be able to return to work. Here, the secretary had left work at noon on December 11, 2008 and had unplanned surgery on December 13, 2008. She called her boss on December 12, 2008 to let him know that she would be going to the hospital. After that though, she failed to communicate with him for several weeks. She failed to provide any documentation of her hospitalization. When they did communicate again, she failed to give him a time frame as to when she would return and did not call him a week later when requested to discuss the return. It was then that he decided to terminate her.
Obviously, missing work due to an illness is not misconduct. But failing to inform your boss of when you will return to work after prolonged illness and failing to provide any record of your hospitalization is misconduct. It’s an important reminder for employees on the course of conduct they should take whenever they face an unplanned illness and have a prolonged absence: (1) promptly notify your employer, (2) continue to communicate with your employer about when you will be able to return to work, and (3) provide some kind of record (a doctor’s note) if asked for it. Failure to follow these steps, if you are terminated, can result in the denial of unemployment benefits (something that is quite painful in this economic state).
The case, Hickey v. Bomers, is here: