In this informative interview, legal experts Elan Wurtzel and Craig Wolfson delve into intricate aspects of employment law, focusing on the nuanced differences between employees and independent contractors. They discuss the implications of these distinctions in various legal scenarios, including workplace accidents and liability cases.
The conversation highlights significant changes in the rules of evidence since 2021, particularly concerning employee statements and their admissibility in legal proceedings.
Additionally, the interview touches on ethical considerations in workplace communications, whistleblower protections, and the importance of proper documentation and safety practices. Their dialogue offers valuable perspectives for both legal professionals and business owners.
Craig, please introduce yourself and tell us about your practice.
Craig Wolfson: My name is Craig Wolfson. I am from the law firm of Wolfson and Klein Wolfson, located in Syosset. I work alongside my wife, Susan Klein Wolfson. We run the operation together, focusing mainly on employment law and wills, trusts, and estates.
Thank you, Craig. And Elan?
Elan Wurtzel: Good afternoon, Craig. Thanks for joining us. My practice emphasizes personal injury and negligence cases. Our offices are in Plainview, New York, and we practice throughout the metropolitan area. We assist people seriously injured in various accidents, aiming to secure compensation for injuries caused by others’ negligence.
Let’s start with a summary of the case involving the laborer at the restaurant.
Elan Wurtzel: Sure. We had a case a few years ago where our client, a laborer from a cleaning company, was hired by a local Long Island restaurant. His job was to perform a semi-annual deep clean of the kitchen, including the venting facilities on the roof. Unfortunately, he fell from a ladder while trying to reach the roof of the building, causing him to fall about 20 feet. He suffered a severe spinal injury and underwent emergency surgery at Nassau County Medical Center. He was left with debilitating injuries that prevented him from engaging in physical labor. He was about 40 years old at the time. We filed a lawsuit against the property owner and the restaurant, relying on Labor Law 240, which holds owners and contractors strictly liable for height-related falls. A critical issue in this case was whether our client was an employee or a prospective buyer of the cleaning company, as the defendants claimed.
Craig Wolfson: Interesting. I wouldn’t have guessed he was a prospective buyer.
Elan Wurtzel: It wouldn’t have mattered for the Labor Law 240 protections if he were an independent contractor. However, his status as an employee was essential. We conducted extensive discovery to establish his employment status. Eventually, the case was successfully resolved. At the time of the accident, he had been working for the owner for many years, so it was an employment situation, although at one point during his work history he expressed an interest in buying his employer’s business. Craig, what defines an employee?
Craig Wolfson: An employee is differentiated by several factors, such as who pays them, who assigns their work, and how regularly they work for the company. There’s a clear distinction between someone randomly climbing a ladder and someone with specific job duties and regularly working in a particular field.
Elan Wurtzel: We also have a case involving a teacher injured during construction activities at a school. Her status as an employee of the school district versus a construction company is crucial for liability theories. In another case, a client was assigned work at a different location and got injured due to dangerous conditions there. Determining the employer in such situations is vital.
Craig Wolfson: That’s a common issue, especially with staffing agencies assigning people to different locations. The borrowing company becomes responsible for the employee’s safety.
Elan Wurtzel: Exactly. In another case, a client was injured by an overly aggressive bouncer. The employer claimed the bouncer’s actions were outside the scope of their employment, and the employer claimed they weren’t responsible for the bouncer’s actions.
Craig Wolfson: When assessing such situations, it’s essential to consider the job description and duties of the employee, like a bouncer. If their actions don’t benefit the employer, it could be argued that such aggressive behavior is outside their employment scope.
Elan Wurtzel: We often encounter cases where a company claims that the person who caused the harm while working in their place was an independent contractor. Generally, a company might be responsible for an employee’s actions but not for those of an independent contractor. This distinction is crucial, especially in work-related sites or when different companies are involved. Craig, could you explain the differences between an employee and an independent contractor?
Craig Wolfson: It’s a common question; the critical factor is control. Who sets the employee’s hours? Are they required to attend meetings at specific times and sign in and out? These are indicative of an employee. In contrast, an independent contractor sets schedules and works for multiple employers. The totality of these criteria helps determine their status, but control is usually the deciding factor.
Does self-labeling as an independent contractor make a difference?
Craig Wolfson: It’s more about actions than titles. This also ties into conversations about whether employees are exempt or non-exempt. It’s about what they’re doing and who’s controlling them, not just what they call themselves.
Elan Wurtzel: The distinction between an employee and an independent contractor was crucial in the teacher injury case. Each involved company claimed to be an independent contractor.
Elan Wurtzel: Regarding hiring practices, what should an employer do to avoid hiring people who may cause harm, particularly when they work in homes or with vulnerable populations?
Craig Wolfson: I encourage employers to conduct background checks. It’s financially feasible and can reveal if a person has a criminal history. While a background check doesn’t guarantee a person’s behavior, it helps. You should also interview thoroughly, check references, and confirm resume details. Hiring someone referred by a trusted source can provide peace of mind.
Are there specific red flags employers should be aware of during hiring?
Craig Wolfson: Trust your instincts. Check for inconsistencies in resumes and during interviews. Look for a stable work history and respectable past employers. The gut test is essential – you get a feel for who’s a good fit.
Elan Wurtzel: We had a case where an anesthesiologist sexually abused a patient during an in-office surgical procedure. The anesthesiologist, previously convicted of a similar offense, was still practicing due to a legal loophole. This highlights the importance of thorough background checks, which wasn’t done in this case.
Craig Wolfson: New York now mandates annual sexual harassment training for employees. These efforts help raise awareness, but the scenario you described is indeed terrible.
Elan Wurtzel: Lastly, in slip and fall cases in supermarkets, employee statements about prior knowledge of spills are crucial. They can show that the store knew about the hazard and failed to address it. Craig, should such statements be used against the employer?
Craig Wolfson: The employer might argue that the employee isn’t authorized to speak on behalf of the company. That would be their likely defense.
Elan Wurtzel: Until 2021, that was indeed the state of the law. Previously, employee statements were generally not admissible against an employer. For example, even a store manager’s statement about an incident was considered unauthorized. However, in 2021, the rule of evidence changed, allowing statements made within the scope of an employee’s work to be admitted as evidence.
Craig Wolfson: So, is it within their scope of work?
Elan Wurtzel: Yes. For example, a cashier speaking about something in the loading dock might not be admissible, but a manager’s statement regarding store operations would be.
Craig Wolfson: I see, that’s similar to issues we face with social media and who’s authorized to speak on behalf of the company.
Elan Wurtzel: Exactly. This rule of evidence change in 2021 is critical for cases, particularly in supermarkets. When investigating, we always ask if anyone heard statements about how a spill occurred and what was supposed to be done about it.
Elan Wurtzel: Noticing and reporting hazards is crucial. For example, I reported a dangerous pothole near my office to the authorities. Notice is always vital in cases involving dangerous conditions. As a result of my report, the pothole was repaired. Otherwise, it would have been an accident waiting to happen. Craig, what should companies and employees do about hazardous conditions on job sites?
Craig Wolfson: Reporting issues to supervisors, communication, and training are key. Employees should also undergo OSHA training, if necessary.
Elan Wurtzel: Is there a risk for employees who whistleblow about dangerous practices?
Craig Wolfson: Yes, retaliation is a concern. Employees might fear for their jobs, leading to people getting hurt because they didn’t speak up.
Elan Wurtzel: I had a client who reported to me that a school district superintendent instructed employees and staff to avoid documenting any communications regarding student issues, which in my view is a form of coverup and promoting unethical behavior.
Craig Wolfson: That’s a common issue, even in legal negotiations. Some prefer verbal communication to avoid documentation.
Elan Wurtzel: It can be difficult for an employee to come forward with damaging information without fearing for job security.
This was very informative. Craig, how can people reach you for labor law inquiries?
Craig Wolfson: You can call us at 516-415-2785, visit our website at wkwlawfirm.com, or email me at [email protected]. Feel free to even knock on my door.
Thank you. Elan, would you like to add anything?
Elan Wurtzel: Sure. You can reach us at 516-822-7866. Craig is a great attorney, and we’ve worked together on mutual clients with excellent feedback. So, it was great having you this afternoon, Craig.
