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COURT REPORTER
When an employee is not an employee [by James Kilpatrick] Back in 1974, Congress adopted the Employee Retirement Income Security Act. In a spasm of extreme legislative clarity, our lawmakers defined an employee as, yes, “an individual employed by an employer.”
This semantic stroke was remarkable — so
wives and two delivery drivers were employ-
remarkable, indeed, that in writing the
ees in fact. Counsel for the owners argued
Americans With Disabilities Act (ADA) of
convincingly to the contrary.
The 2003 case involved a gastroenterol-
An employee is “an individual employed by
The owners said they could not possibly be
Portland. In 1996 the clinic hired Deborah
an employer.” Now, in a case just accepted
regarded as “employees” under the act. They
Anne Wells as a bookkeeper. After the four
for argument before the Supreme Court, the
were partners in ownership of the corpora-
physician-owners dismissed her in 1997, she
justices will have one more opportunity to ex-
tion. They divided the profits equally, did the
sued under the Americans With Disabilities
plain when an employee is not an employee.
hiring and firing, and exercised complete
Act. Like the Civil Rights Act, the ADA affects
Or vice versa.
control over the restaurant. As for their
only employers with 15 or more employees.
wives, they performed no real “work.” They
Counting the doctors, the clinic had 18. With-
The case at hand, scheduled for argument
were at most passive partners. Arbaugh’s
out them, it was not subject to suit.
next winter, is Arbaugh v. Y&H Corporation
lawyers, for their part, offered evidence that
, on appeal from the U.S. 5th Circuit in New
the wives (1) received a salary for their han-
The high court ruled that the doctors should
Orleans. The “Arbaugh” is Jenifer Arbaugh,
dling of advertising and publicity; (2) were in-
not be counted. Their clinic is a professional
who served as a bartender and waitress at
cluded on the payroll register, and (3) had the
corporation. Like partners in a big law firm,
the Moonlight Cafe in the city’s lower Garden
proper taxes deducted from their paychecks.
the four doctors are not exactly “employees.”
dissented.
ogy clinic in Clackamas, a suburb south of
1990, Congress adopted the same definition.
District from May 2000 to February 2001.
Several factors, said Stevens, support that What about the two drivers? The owners ar-
view. On the other hand, Ginsburg argued in
Ms. Arbaugh was not a happy camper. She
gued that the drivers were not on a “payroll.”
dissent, they’re owners. They should not be
alleged that Yalcin Hatipoglu, one of the two
They worked for $4 an hour plus tips; nothing
sheltered from the strictures of the disability
co-owners of the cafe, continually subjected
was deducted from their wages. They drove
act.
her to a sexually hostile environment. The
and maintained their own cars. Arbaugh’s
Civil Rights Act of 1964 prohibits that sort of
counsel responded that the two drivers, when
For my own part, I would turn to Judge
thing. Evidently a jury believed her charges,
they weren’t driving, were required to help in
Dumpty of Wonderland fame. “The ques-
for in October 2002 she won a two-day trial
the kitchen. They prepared salads and des-
tion,” said that eminent jurist, “is who is to
and $40,000 in back pay and damages.
serts, filled the salt and pepper shakers, and
be master, that’s all.” I would count the wives
worked according to hourly schedules set by
and the drivers as employees and save the
the owners.
day for Jenifer.
for the 5th Circuit, speaking through Judge
Alas for Jenifer Arbaugh! The 5th Circuit’s
(Letters to Mr. Kilpatrick should be sent by
Harold R. DeMoss, nullified the award. His
panel found the owners’ evidence convinc-
e-mail to kilpatjj@aol.com.)
opinion had nothing to do with the substance
ing. As employers, they themselves were not
of Ms. Arbaugh’s grievance. It had everything
employees. Neither could their wives and the
COPYRIGHT 2005 UNIVERSAL PRESS SYN-
to do with the meaning of “employee.”
drivers be counted as employees. Economic
DICATE
realities supported the owners’ view. Also
This feature may not be reproduced or dis-
The co-owners naturally appealed. This time they won. A panel of the U.S. Court of Appeals
It is a jurisdictional matter. The applicable
on their side — barely — was the Supreme
tributed electronically, in print or otherwise
law affects only those employers with 15
Court’s 7-2 opinion just two years ago in a
without the written permission of uclick and
or more employees. The young bartender’s
case from Oregon. Justice John Paul Stevens
Universal Press Syndicate.
lawyers argued persuasively that the cafe
wrote for the majority in that case. Justices
qualified. In their view, the two owners, their
Ruth Bader Ginsburg and Stephen Breyer
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