By: Rudman Winchell Attorney John Hamer
It was Wednesday before Thanksgiving, a couple of years ago. I was sitting in my office, watching the clock hands slowly tick toward dinnertime. It was dark out and most people had already left the office for the day. That was when the fellow first appeared in my door way. He was a big man with a deep voice, hiding under an even bigger overcoat. Looked like he had some kind of red suit under the coat, so I probably would have kept the coat on too. Said he didn’t want to be seen in a lawyer’s office but thought he needed help. I said I would take the case.
“What exactly is the nature of your business?” I inquired. “Export, mostly,” he said coyly, “children’s goods.” The chap was hiding something, I just didn’t know what. “It’s my workforce,” he explained. “I have a problem with what they are saying on Facebook about me.” I asked with increasing alarm, “do they complain about working conditions or management on Facebook? Because if they do, it constitutes protected activity under the National Labor Relations Act even if they are not unionized.” “Good gracious, no,” he said, “they are a very happy group. My problem is the opposite– they keep saying good things about me and friending me. I just can’t keep up with all the birthday cards for all my new friends.” “Just because someone friends you doesn’t mean you have to send them a birthday card,” I explained. He looked relieved.
“How many employees do you have?” I inquired. “Oh no,” he said, “most of them are not employees at all, most of them are independent contractors. And I just can’t keep count of them.” I sighed, knowing the problems he might be in for. Then, to my surprise, he pulled out a bulging sack (that I had not noticed before- where did it come from, anyway?) of current Workers’ Compensation independent contractor predetermination approvals, one for each individual, issued earlier this year shortly after the WCC-266 form was updated on August 1, 2013. And if that wasn’t enough, he proceeded to explain how each individual met the five mandatory criteria for independent contractors and at least three of the seven additional criteria as set forth in 26 M.R.S.A. § 1042(11)(E). “I think you’re good there,” I finally admitted.
“Just one more question,” the gentleman continued, “about the Family Medical Leave Act.” I pulled out my copy of the regulations and a magnifying glass, ready for anything. “I do have 75 employees at one location, and I know the FMLA provides for up to 12 weeks of unpaid leave for, among other things, a serious medical condition, but my question is, can’t I just pay them anyway? I mean, it seems like the nice thing to do, especially if they are not feeling well.” I sat back in my chair and said nothing for a moment. Finally, I responded, “you don’t really need a lawyer, do you?”
“No, I guess I don’t really need a lawyer after all,” he concluded. “Thank you,” he said, “I feel much better now after our little talk.” “What do I owe you,” he asked. “Nothing,” I replied, “consider it an early Christmas present.” The guy chuckled, and it gave way to a full-fledged belly-laugh before he caught himself and stopped. Something about the guy suddenly seemed familiar but I couldn’t put my finger on why.
Finally, he said, “I really must be going. I have to be in New York in the morning.” “Going to the Thanksgiving Day Parade?” I asked. “Never miss it,” he said with a sparkle in his eye. My phone rang suddenly and I jumped and turned to check the caller-ID. N. Pole– the name didn’t ring a bell so I let it go to voicemail. I turned back to the guy, but he was gone. Strange, I didn’t even hear the door close- he was quick for such a big guy. Left soot on the carpet, though. Oh well, at least he was a nice fellow.