May 06, 2003|By Stephanie Hanes | Stephanie Hanes,SUN STAFF
The lawsuit brought recently by four Baltimore County workers, who claim they have been denied benefits and job security by being labeled "part-time" employees, is one of a small, but growing, number of cases against employers alleged to have "mislabeled" or "misclassified" workers.
Over the past decade, there has been a huge increase in the number of employees considered "part-time," "consultants," "temporary," or some other name differentiating them from regular workers, according to labor lawyers and worker advocates.
Many of those workers have situations similar to the part-time employees in Baltimore County, who work as many hours a year as full-time workers but receive less vacation time, get fewer holidays off and are not entitled to grievance procedure protections of the county's "merit" system.
Now, experts said, workers are starting to protest.
City workers in Seattle have sued the local government for keeping benefits from temporary and part-time employees. King County, Wash., workers have won a similar lawsuit. Lawyers in Los Angeles County have challenged a setup where some county attorneys earn lower pay than colleagues because of their classification. And employees at Microsoft Corp. who were labeled "independent consultants" and denied many company benefits recently won a $97 million settlement.
"There's a much bigger percentage of employees in this situation," said Michael Hayes, a professor at the University of Baltimore School of Law. "What's happened in the last five years is workers are starting to respond. They're saying, `I'm not satisfied with this. I want to be treated like a full-time, regular employee.'"
But, lawyers said, there are only a handful of "misclassified employee" cases in the country.
`Difficult cases'
Such cases are tedious and difficult to litigate, lawyers said. They often revolve around local charters or codes, which must be researched and deciphered. The suits must also pierce through a variety of what workers' advocates call employer "tricks," such as setting up a temp agency so employees can be labeled as temporary workers, or cutting full-time positions so employees can be hired back as independent contractors.
And sometimes it is difficult to prove that these moves by employers are actually illegal. As Baltimore County has done in the local lawsuit, employers can recite a list of reasons why temporary or part-time workers are legal and necessary: They comply with the local charter, they allow for more flexibility and efficiency in employment, and they cut costs for local governments.
Maryland, for instance, hires many contractual workers, employees who sign annual contracts with the state and work full time, but don't receive sick leave, medical insurance or vacation time. There has been no lawsuit filed against the state regarding this practice.
"These are very difficult cases," said Judith Bendich, an attorney at a Seattle firm that has represented workers in a number of cases similar to the one in Baltimore County Circuit Court. "No case is the same. Each case is based on the unique law applicable to that unique group."
Bendich's firm, Bendich, Stobaugh and Strong, is one of the few firms to specialize in misclassification suits.
It won the cases against the city of Seattle and King County on behalf of employees who were labeled temporary and part-time, even though they were working full-time hours.
One of the most famous cases of this type is the lawsuit against Microsoft Corp., in which Bendich's firm argued the company's independent contractors had performed essentially the same jobs as regular workers, and should have been eligible for a variety of benefits, including sick leave and company-paid health insurance.
Now the firm is litigating a case in Los Angeles, representing a group of lawyers and paralegals in the Office of Los Angeles County Counsel who work alongside county-employed attorneys, but who are officially employed by the independent Auxiliary Legal Services.
Bendich said Auxiliary Legal Services, which pays its lawyers less than county-employed lawyers, is a shell company set up by the county to save money. The county has said it is legal, and said it can pay those employees less than their county employee colleagues.
"No case is the same, but the practice is always the same, where you're not calling people regular employees even though they're doing regular work," Bendich said.
Race, gender gaps
Bendich also said that lawyers assigned to the lower-paying Auxiliary Legal Services were predominantly female, while those assigned to the county job were primarily men.
This type of disparity is a common complaint in "misclassified" worker claims.
In Baltimore County, for instance, the workers' suit notes that there is a disproportionate number of blacks and women in part-time positions.
