Alabama Court of Civil Appeals

Cell Phones and Computers Increase Workers’ Compensation Risks

Robert C. Lockwood
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Cell phones and computers can increase the possibility of liability under the Alabama Workers’ Compensation Act

Alabama employers who provide employees with cell phones and laptop computers are increasing their exposure to claims for benefits under the Alabama Workers’ Compensation Act.  See Hospice Family Care v. Allen, No. 2140961, 2016 WL 3223297 (Ala. Civ. App. Jun. 10, 2016).  Suzanne Allen was a hospice nurse who was required to drive around North Alabama treating patients. Her employer did not provide a car, but paid mileage on her personal vehicle.  The employer also provided Ms. Allen with a cell phone and laptop computer.  Ms. Allen’s work schedule was from 8:00 a.m. to 4:30 p.m., but her employer encouraged her to go home after seeing her last patient, rather than returning to the office each day.  Ms. Allen was killed while driving home on February 3, 2014 at 3:46 p.m., when her car was struck by a vehicle in the wrong lane.

Courts in Alabama usually follow the “going and coming rule.”  Under that rule, the Alabama Workers’ Compensation Act generally does not cover an accident which occurs while a worker is traveling on a public road while going to or coming form work.  Thus, the employer in Hospice Family Care argued that Ms. Allen’s accident was not covered by the Workers’ Compensation Act, because she was unquestionably travelling home.

Based upon the facts of the case, however, a trial court and the Court of Civil Appeals found that Ms. Allen’s accident was covered.  In particular, the court noted that Ms. Allen was provided a laptop computer and cellphone and she regularly worked on patient charts for two hours after arriving home.  As the court put it, “nurses were encouraged to go home to complete their required tasks.”  Because Ms. Allen was “going home to complete a required task,” the Court found that her drive home was in the furtherance of the business of Hospice Family Care and, therefore covered by the Workers’ Compensation Act.

Unquestionably, technology provides a great benefit to all employers.  With that benefit, however, comes additional risks.  Hospice Family Care demonstrates one of those risks.  If employers encourage employees to work from home, and provide the technology to do so, then accidents that would not ordinarily be covered could potentially be subject to the Alabama Workers’ Compensation Act.

The Dangers of Christmas Hams And Other Workplace Holiday Issues

Robert C. Lockwood
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Christmas is only three days away.  So, I decided to provide a review of three somewhat amusing cases in Alabama involving the interplay of the holidays and the workplace.

Don’t Give Employees Heavy Christmas Hams

Many employers give Christmas hams to employees.  Be warned:  if the ham is too heavy you might wind up paying workers’ compensation.  See Moesch v. Baldwin County Elec. Memb. Corp., 479 So.2d 1271 (Ala. Civ. App. 1985).  In Moesch, the employee injured her back at the end of the work day, when she picked up a 20-pound Christmas ham given by her employer.  The Court found that giving Christmas hams “would tend to boost the morale of employees, which would be beneficial to defendant.”  Moesch, 479 So.2d at 1273.  As a result, the court found that the employee’s injury “arose out of and in the course of” her employment, entitling her to workers’ compensation benefits.

It’s OK to Allow Dancing at Christmas Parties

While ham-based injuries appear to be compensable, dance injuries are not.  See Anderson v. Custom Caterers, Inc., 185 So.2d 383 (Ala. 1966).  In Anderson, an employee was injured as a result of a fall she sustained while dancing at a Christmas party.  The party was held at the employer’s place of business and alcohol was served.  The employee argued, like the employee in Moesch, that the employer received a benefit from the morale boost to employees.  Nevertheless, the Court found that the injury did not arise out of or in the course of employment, and the employee was not entitled to workers compensation.

Holiday Pay Can Save You From an Unemployment Claim

In Etowah County, a steel foundry closed for two weeks over the holidays.  A collective bargaining agreement provided that employees received “holiday pay” and were paid a full day’s wage for Christmas Day and New Years day, even though the foundry was closed.  Despite that generosity, employees claimed that they were unemployed during the two-week closure and sought unemployment benefits.  See Autwell v. State Dept. of Indus. Rel., 249 So.2d 625 (Ala. Civ. App.)  Nevertheless, they could only be considered unemployed if they did not receive “wages” as defined by the unemployment compensation statute.  The Autwell court found that the holiday pay was sufficient “wages” and affirmed denial of the claim for benefits.

 

Merry Christmas and Happy New Year!

How “Independent” Are Your Independent Contractors?

Robert C. Lockwood
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Frequently, clients will say to me:  “If I just call my employees ‘independent contractors,’ I won’t have to (pay benefits, withhold taxes, comply with Obamacare, etc.)”  If legal compliance was that easy, I would be out of a job.  Judges don’t care what you call the people who work for you.  Instead, they will examine the totality of the relationship to determine if an individual is an “employee” or “independent contractor.”

The key issue in this analysis is control.  There are many factors that can indicate whether a person is an employee, but the most important factor is control.  Recently, the Eleventh Circuit Court of Appeals found that stagehands (for concerts, plays and other entertainment events) were not employees of a referral service.  Crew One Productions, Inc. v. National Labor Relations Board, No. 15-10429, 2016 WL 403201 (11th Cir. Feb. 3, 2016).  In that case, Crew One referred stagehands to producers of events.  Crew One required the stagehands to attend an orientation session and comply with producer policies, and also provided workers’ compensation insurance.  The NLRB found that the stagehands were employees of Crew One and entitled to form a union, but the Eleventh Circuit reversed that determination.  While the Court reviewed numerous factors, it emphasized Crew One’s lack of control over the means by which stagehands performed their work.  That control was exercised by the producers, not Crew One.  As a result, the Court found that the stagehands were independent contractors who were not entitled to form a union.

In contrast, the Alabama Court of Civil Appeals found evidence that a truck driver was an employee for purposes of the Alabama Workers’ Compensation Act in Jenkins v. American Transport, Inc., No. 2140153, 2015 WL 6111 840 (Ala. Civ. App. Oct. 16, 2015).  In that case, the truck driver signed an agreement expressly declaring that he was an independent contractor.  But, the Court looked beyond that agreement and found that American Transport controlled the manner in which the truck driver performed his job.  Among other things, the Court found that American Transport prohibited truck drivers from loading and unloading cargo, or allowing anyone to touch cargo on their trucks.  The Court also found that American Transport provided license plates and trailers to the drivers.  Thus, the Court found sufficient evidence of control to require a trial on whether the truck driver was an employee.

The Jenkins and Crew One cases demonstrate that your independent contractors must be truly “independent.”  Even if you and your worker sign an agreement calling them an “independent contractor,” a court can look beyond that agreement, and particularly examine control, to determine if they are an employee.