Doctor with staff privileges at hospital may sue under Title VII

The employment discrimination laws make it illegal to treat an employee unfairly because of race, gender, religion and other characteristics. Except that you have to be an employee in order to bring a case under Title VII, which is the statute which protects you from discriminatory treatment. If you are an independent contractor, you have no case.

That issue arose in Salamon v. Our Lady of Victory Hospital, decided on October 29. Salamon is a doctor who claimed sexual harassment and retaliation in the workplace. The trial court dismissed the case because Dr. Salamon was not an employee but an independent contractor. The Court of Appeals reversed, sending the case back for trial.

UPDATE: as of the morning of October 30, this opinion has been withdrawn without explanation. An amended opinion will follow.

The general rule is that someone is an "employee" if the employer exercises sufficient control over her workday. As the Court of Appeals puts it: "To be sure, staff physicians like Salamon have been classified as independent contractors largely because of the extent to which they control their own practices even while affiliated with a hospital. But relationships between staff physicians and the hospitals in which they work may differ. A physician's professional independence -- his or her degree of control over the manner and means of the work -- may vary. In effect, the amount of control a putative employer exerts relative to the employee necessarily falls somewhere along a continuum, an independent contractor at one end, an employee at the other."

So which is it? Was Dr. Salamon an employee or an independent contractor? She had staff privileges at the hospital and relied on its instrumentalities for her day-to-day functions and underwent hospital supervision, particularly from the quality control department. Sounds like she was an employee because the hospital controlled her employment. Except that she had some measure of control over her workday as, for example, "she was free to set her own hours and maintained her own patient load and schedule, subject to the availability of the endoscopy equipment, which the Hospital controlled. She determined which patients to see and treat, and whether or not to admit them to OLV (or another hospital). She was allowed to maintain staff privileges at other hospitals, and did, though most of her practice was at OLV. Salamon was not paid a salary, wages, benefits, or any other monetary compensation by OLV."

The Supreme Court has outlined the 13 factors in determining whether someone is an employee or independent contractor:

[1] the hiring party's right to control the manner and means by which the product is accomplished; [2] the skill required; [3] the source of the instrumentalities and tools; [4] the location of the work; [5] the duration of the relationship between the parties; [6] whether the hiring party has the right to assign additional projects to the hired party; [7] the extent of the hired party's discretion over when and how long to work; [8] the method of payment; [9] the hired party's role in hiring and paying assistants; [10] whether the work is part of the regular business of the hiring party;[11] whether the hiring party is in business; [12] the provision of employee benefits; [13] and the tax treatment of the hired party.

These factors (often applied in these cases), however, may not satisfy Title VII's proviso that the employment discrimination laws be interpreted liberally. The Court of Appeals noted that while the 13 factors are useful in resolving these cases, they are not always consistent with Title VII. The Court reasoned: "The most important factor in determining the existence of an employment relationship is that control or right of control by the employer which characterizes the relation of employer and employee and differentiates the employee or servant from the independent contractor."

Under that model, the question could go either way for someone like Dr. Salamon. As the hospital did assert control over her employment through its quality control department which monitored how she was treating patients, and she faced the possibility of negative peer reviews if she did not satisfy hospital standards, she might be an employee. Since a jury has to resolve whether the hospital exercised enough control over her employment, Dr. Salamon is entitled to a trial, and summary judgment is reversed.