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PUBLICATION

Employee, independent contractor, or just plain visitor?

Karen McAndrew, Leigh Cole, Editors
Dinse, Knapp & McAndrew, P.C., Burlington

by Karen McAndrew

Sometimes it’s difficult to tell whether the court is talking about employment law or just old-fashioned “premises liability,” but in the end, that apparently doesn’t make a great deal of difference when it comes to your obligation to provide safe workplace premises. And, as a recent Vermont Supreme Court case shows, you’d better not instruct or invite someone to do something that is just plain dangerous even when the danger is open and obvious to the dude who’s about to do it.

Facts

Hector LeClair, who had experience in the construction business, owned a building in need of a new roof. He asked his son, Ricky, who was also in construction, about replacing the roof. Ricky in turn asked his son, Joseph, who was an unemployed roofer at the time, if he was interested in the job, saying it would be “good money.” Joseph took on the job, and Ricky delivered the materials and equipment to the jobsite. Joseph later alleged, however, that his grandfather, not his father, told him what to do.

Several days after having removed the old shingles, Joseph showed up on an October morning to find that an early frost covered the exposed underlayment. He saw the obvious danger and decided he shouldn’t work on the slippery roof. He claimed later, however, that his grandfather told him to get to work. Joseph then climbed a ladder to a porch roof, and from there began to climb on the second story roof when he slipped and fell to the ground, suffering serious and permanent injuries to his head and back. He then sued his grandfather.

Grandfather’s responsibility?

The trial court dismissed Joseph’s complaint without a trial, holding that Hector owed no duty to protect someone on his property from a known and obvious danger. At the last minute, Joseph tried to amend his complaint to allege that his grandfather was really his employer, and because Hector didn’t have workers’ compensation insurance, Joseph didn’t have to prove his grandfather’s negligence in order to recover for a workplace injury. He also wanted to include a “common law claim” that, as his employer, Hector had an obligation to provide him with a safe workplace. His grandfather opposed this attempt on a variety of grounds, among them the late-in-the-day filing of it. The trial court didn’t allow the amendment, so the case proceeded to the Vermont Supreme Court.

Over the strenuous dissent of two members of the court, the majority managed to find a means by which Joseph’s case could proceed to trial. Most of the ink was spilled on the “premises liability” issue, not the employment claim, but there is considerable overlap, and particularly if you own your workplace premises, the decision deserves some attention.

Traditionally, the law made distinctions among categories of visitors—employees, “business invitees,” “licensees,” and trespassers—and the duty owed to a person coming on the premises depended on the category into which that person fell. Distinctions among employees, business invitees, and other visitors have now largely disappeared, however—and even some trespassers may now be owed some measure of care if the property owner has reason to know that trespassers are likely to come onto the premises and encounter danger. In general, the duty is to protect against or warn visitors of latent or hidden dangerous conditions on the premises.

Until now, however, there has not been a duty to warn of open, obvious dangers. And in general, a visitor who voluntarily assumes the risk of an open and obvious danger has no claim against the landowner for injuries that result from that activity. (It was largely those principles that drove the dissent to argue that Joseph shouldn’t recover for climbing onto the roof that he knew was slippery.) So how does all of that play out among the LeClairs?

Court’s decision

Because Hector hadn’t claimed that Joseph “assumed the risk” of climbing on the icy roof—concentrating instead on the question of whether he owed any duty to him in the first place—the supreme court also turned its attention to the question of whether there was a duty to protect against or warn Joseph about the slippery roof. The answer would appear to be obvious, as Joseph had admitted that he observed the condition, knew it was dangerous, and decided to “risk it,” after first having decided it was a bad idea.

However, the court pounced on an exception to the general rule, which notes that there are cases in which the owner or possessor of land “should anticipate that the dangerous condition will cause physical harm . . . notwithstanding its known or obvious danger” or has reason to understand that the visitor will “fail to protect themselves against” the danger. That exception prompted the court to focus on the testimony from Joseph that Hector ordered him to get to work, despite the frosty condition of the roof. The court posited that a worker in that situation might feel compelled to do the work despite the danger or risk losing his job. And that was enough for the court to send the case back to the trial court for a jury to determine whether Hector did in fact order Joseph to work on the icy roof and, if so, whether he should have anticipated that his grandson would be injured.

The court then went on to consider whether to add— when the case got back to the trial court—Joseph’s claim that his grandfather was his “employer” and whether Hector had an obligation under the circumstances to provide him with a safe place to work. That duty has now been established in a statute, but because the statute doesn’t provide an employee a basis to assert a claim against the employer, Joseph had to rely on the duty that developed under the common law.

Hector argued that he wasn’t Joseph’s employer because Ricky had engaged him to do the work and supplied the materials and equipment. Joseph argued, on the other hand, that his grandfather was the one who “controlled” the work, was present on the premises, and ordered him to get to work.

Although the definition of “employer” under Vermont’s workers’ comp statute is broader than this, the court agreed that, for these purposes, the “right to control” is the essential determinant of who is an employer but noted that can’t be true where the “proposed employee” has specialized knowledge that the “proposed employer” doesn’t have. Where that is the case, other factors become relevant, such as who supplies the tools and equipment, whether the work is “by time or by job,” whether the work is part of the regular business of the employer, and so on.

In this case, the court said that because there were so many conflicting facts and allegations, a jury should have been allowed to sort them out, so it sent the case back for trial on Joseph’s original complaint as well as his amendment.

And the moral is?

Is there at least something employers can learn from this? Perhaps.

First, to state the fairly obvious, it’s not a good idea to instruct, or even ask, anyone working on your premises— employee, independent contractor, or otherwise— to engage in something that is obviously dangerous, even if you think the danger should be understood by the worker.

And second, it’s not as easy as defining your duties to provide safe working conditions by whom you consider to be your employees. Don’t assume that because an independent contractor is working on your premises that you have no duty to provide a reasonably safe place to work or to warn of hidden or latent defects.

Faced with a complaint, employers tend to say, “They were making it up.” But that’s not usually the case; the employee generally has a “good-faith belief” that he is right. And that’s all that’s required legally. The complainer doesn’t have to be right about the complaint.

Cultivate culture of criticism that leads to loyalty

Employers already understand the need for policies that don’t merely prohibit discrimination but also prohibit retaliation and the adverse treatment of whistleblowers. But it isn’t enough to just inform workers that they are protected from retaliation. Instead, companies should create a culture that supports internal criticism across the spectrum of issues, large and small. Whistleblowing can either increase cooperation and reduce selfishness within the group or increase dissent and denigration. The difference comes down to group culture.

Organizations looking to reduce the threat of retaliation lawsuits should consider creating a culture that welcomes criticism. The thought is that if you encourage employees to blow the whistle internally and your company views dissent as a good thing (i.e., it makes the company better), loyalty is enhanced, and whistleblowing to an outside entity such as the EEOC becomes less likely.

Part of that effort should include strong, well-publicized policies that encourage internal reporting of potential violations or wrongdoing. But it should also include training supervisors on how to welcome criticism and avoid retaliation toward subordinates who speak up, in addition to conveying other messages that highlight the value of internal constructive criticism.

Make whistleblowing ‘less noble, more normal’

If an employee’s whistleblower or retaliation claim heads to court, you might benefit from evaluating your complex feelings toward the whistleblower. You may not want to explicitly play the loyalty card because blaming the employee for breaking ranks may seem to reinforce his argument that your company had a retaliatory motive. Instead, seek to normalize the act of whistleblowing.

If your company has embraced a culture of criticism, you should be able to point to several features of your policies and culture that don’t just allow whistleblowing but positively encourage it. The ability to prove that such a culture exists permits you to suggest that whistleblowing isn’t a uniquely noble act on the employee’s part but instead is something you expect of all your employees. The fact that a claim was made means you need to take it seriously, but it doesn’t mean you retaliated against the employee.

Ultimately, the complexity of our views of whistleblowers is a reminder that employment decisions and court cases aren’t just about claims, evidence, and the law. They are also about perceptions and a story and how each of the parties fits within that story’s moral frame.

Questions your company should ask

Finally, ask yourselves these questions:

  • Are we clear and honest about what we want?
  • Are we encouraging “dissensus”? (When discussion, criticism, and reporting are part of your job and part of your culture, it’s harder to get worked up.)
  • Is whistleblowing normalized?
  • Are we aiming to keep it nonpersonal?
  • Are we consistent?
  • Do we follow through? (Employees need to see that the complaint process is followed).
  • Do we publish outcomes (“We investigated and corrected” or “we found no violation but see the need for more training.”)
  • Do we properly implement whistleblower discipline? (Yes, you can impose discipline on someone who is a whistleblower, but only with care.)

Karen McAndrew can be reached at kmcandrew@dinse.com or 802-864-5751.

Dinse Covid-19 Update

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