Tag: The Practical Employer

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This Disability Discrimination Lawsuit Was No Party

Jon Hyman The Practical Employer

Party City has agreed with the EEOC to pay $155,000 to settle an ADA lawsuit the agency filed on behalf of a rejected job applicant on the autism spectrum and suffering from severe anxiety.

According to the lawsuit, the individual had been receiving services from Easter Seals of New Hampshire to build up her self-confidence, including working and applying for a job. These services included a job coach.

When the Party City interviewer learned that the woman accompanying her to her interview was a job coach, the EEOC alleged that his entire attitude changed.

The hiring manager told the job coach that Party City had hired people with disabilities with job coaches in the past and that it had not gone well, and made disparaging comments about those emp­loyees. Although both the applicant and the job coach explained to the hiring manager that the applicant had been successful shadowing others in previous retail jobs, the hiring manager was uninterested in either the applicant’s abilities or in the limited role the job coach would play. … The hiring manager tried to cut the interview short by telling the job coach in a patronizing tone, “Thank you for bringing her here,” while the applicant was still in the room. The hiring manager also stated, in the applicant’s presence, that the Party City employee who had encouraged the applicant to apply would hire anyone, and would “even hire an ant.”

Per EEOC regional attorney Jeffrey Burstein, “Federal law requires employers to consider disabled job applicants based on their abilities, not on demeaning stereotypes.” Adds Kevin Berry, director of the EEOC’s New York District Office, said, “Allowing this applicant to work with a job coach in her early weeks of employment would not have caused an undue burden on Party City. The ADA requires employers to make this type of reasonable accommodation so as to enable qualified people with disabilities to join the workforce, which is a win-win for everyone.”

Four takeaways from this lawsuit and settlement:

    1. An employer’s obligation to consider and offer reasonable accommodations does not just extend to employees, but also to applicants. Employers cannot shirk their ADA responsibilities just because the person needed the accommodation is just an applicant.
    2. Past bad experiences with other employees or applicants are not a valid reason to deny a reasonable to a current employee or applicant. Reasonable accommodations are individualized, and must be considered on an individual-by-individual basis. Telling someone that you can’t offer an accommodation because of past bad experiences with others is a recipe for an expensive (and difficult to defend) lawsuit.
    3. A job coach is potential reasonable accommodation you must consider when presented by a disabled employee or applicant. You have to then engage the individual in the interactive process and determine how to offer that accommodation, if possible.
    4. Party City did the right thing by recognizing that it mishandled this applicant and settling this lawsuit through early mediation. It could have avoided the whole problem, however, by ensuring that those involved in hiring for its stores understand their reasonable accommodation obligations to disabled applicants. Indeed, I’d go so far as to say that no one should be doing any interviewing or hiring without ADA and reasonable accommodation training. This risk is just too great.
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Does Title VII Protect Heterosexuals From Discrimination?

Jon Hyman The Practical Employer

So meet, ROBERTa! Shopping in the women’s department for a swimsuit at the BR Target. For all of you people that say you don’t care what bathroom it’s using, you’re full of shit!! Let this try to walk in the women’s bathroom while my daughters are in there!! #hellwillfreezeoverfirst

Suppose you own a company, and one of your employees posts this rant on her personal Facebook page.

Further suppose that in addition to owning the company, you are also a lesbian and take offense to the employee’s views. If you discipline the employee for her Facebook post, and later fire the employee after she complains about the discipline, can the employee sue for retaliation under Title VII? In other words, does Title VII protect heterosexuals from discrimination in reaction to anti-LGBTQ speech?

In O’Daniel v. Industrial Service Solutions, the 5th Circuit said no.

The case put the plaintiff, unabashedly and vocally anti-LGBTQ (as expressed in the at-issue Facebook post), in the position of arguing that Title VII protects against discrimination on the basis of sexual orientation.

The court held that under its own precedent, O’Daniel could not move forward on her claim.

O’Daniel claims in essence that she was retaliated against because she “opposed” discrimination perpetrated against her on the basis of her heterosexual orientation.… Title VII in plain terms does not cover “sexual orientation.” … Because the law in this circuit is clear, we cannot accept O’Daniel’s … suggestions that this panel either overrule the precedents or assume arguendo that the “trend” has upended them.

Thus, because the 5th Circuit does not recognize sexual orientation as class Title VII protects, and employee’s complaints about her employer discriminating against her because she is heterosexual could not support a retaliation claim: “Title VII protects an employee only from retaliation for complaining about the types of discrimination it prohibits.”

Two points to make about this opinion.

First, if Title VII equates LGBTQ discrimination to “sex” discrimination (as I, like many other courts and the EEOC, believe it does), then logic says that it must also protect heterosexuals from discrimination at the hands of the LGBTQ community because of their sexual orientation. Any other result is logically inconsistent.

Second, this employee was not fired because she complained about discrimination. She was fired because she exhibited extremely poor judgment through her Facebook rant. As the concurring opinion succinctly and correctly states: “Simply put, Title VII does not grant employees the right to make online rants about gender identity with impunity.”

If the employee ranted against interracial marriage, and the company’s African-American owner fired her, would anyone think she has a valid claim? This case is no different. The law protects the employee from discrimination and retaliation, but it does not protect the employee’s right to express bigoted views on her personal Facebook page or otherwise.

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Firing an Employee Because of His Heart Problems? Rethink That One

Jon Hyman The Practical Employer

Jonathan Baum worked as a scheduler for Metro Restoration Services.

In late 2014, he began to suffer cardiac problems. Over the course of the next several months, he went to the ER fearing a heart attack, had a heart catheter implanted, had an echocardiogram and wore a heart monitor. He occasionally also missed work for medical tests and treatments and sometimes worked remotely. His boss, and the owner of Metro, Patrick Cahill, was aware of Baum’s medical issues.

Following a work day on which Baum had worked remotely from his home, Cahill fired him. The expressly stated reason: “health issues and doctors’ appointments.”

Oops.

Baum then sued for disability discrimination.

Even with all of Baum’s cardiac issues, the 6th Circuit held that he could not establish that he suffered a physical impairment that substantially limited one or more major life activities. Therefore, Baum did have a legally protected actual disability. Baum had failed to identify a medical expert to testify and establish whether his cardiac problems substantially limit his cardiovascular and circulatory functions.

So do Baum’s impairments limit his cardiovascular and circulatory functions? They might. But to conclude that they did, a jury would need to understand them—how they function, and what that means for Baum. And to understand them, jurors would need an opinion from someone with “scientific, technical, or other specialized knowledge”: expert testimony.

Because Baum failed to disclose his doctor—or anyone else with specialized medical knowledge—as an expert witness, he lacks the evidence he needs. And without that evidence, he hasn’t created a factual issue over whether he is actually disabled.

Case closed, right? Not so fast.

The ADA does not only protect actual disabilities, but also perceived disabilities. On this latter claim, Metro had a huge problem.

Unlike actual disability claims, an employee proceeding on a claim of perceived disability need not prove a limitation of a major life activity, but only that the employer took an adverse action “because of an actual or perceived physical … impairment.” Thus, the lack of a medical expert was not fatal to this claim.

Baum argues that a jury could find that Metro fired him because Cahill thought Baum was disabled. For support, he relies on Cahill’s knowledge of Baum’s catheter, CAT scan, trip to the ER, and period where he wore a heart monitor. Baum also points to Cahill’s stated reason for firing him: his “health issues and doctor’s appointments.” …

Cahill’s knowledge of Baum’s medical issues—alone—is insufficient to carry the day.… But Baum has more—he has Cahill’s stated reason for firing him: his “health issues and doctor’s appointments.” That statement is what creates a factual dispute and makes it material. Giving Baum the benefit of the doubt, a jury could find that Cahill meant what he said. And if a jury so found, it could also find that Cahill perceived Baum to have a physical impairment and fired Baum because of that perception.

In other words, employers, it’s not the best idea to tell your employee that you are firing them because of their medical issue. It will not end well for you.

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When Workplace Training Goes Very, Very Wrong

active shooter training

A few months ago I participated in active-shooter training.

I presented harassment training for a local manufacturer and at its conclusion the company played a 10-minute video explaining to its employees what to do in an active-shooter situation.

Generally I’m not a fan of training videos. They tend to be boring, poorly acted and ineffective. This one, however, was quite effective. It was not only chilling to watch, but, a few months out, I still recall the ABCs of what to do during an active shooter (Avoid, Barricade, Confront).

An Indiana school district, however, had a different idea of how to train its employees to prepare for an active shooter.

This employer had its employees shot in the back, execution style, with plastic pellets.

Vox offers the details.

Local law enforcement carried out the drill with the teachers of Meadowlawn Elementary School in Monticello, Indiana, in January, the Indiana State Teachers Association said in a meeting with state legislators on Wednesday. The drill involved dividing the teachers into small groups and instructing them to face a classroom wall and kneel. Then, deputies with the White County Sheriff’s Office fired plastic pellets into the backs of more than 20 teachers without warning. Several teachers were injured, a representative for the district’s union said, though none have publicly come forward about the incident.

The employees’ union further detailed on Twitter the mental anguish its members suffered.

Indiana State Teachers Association@ISTAmembers
 · 
Replying to @ISTAmembers

During active shooter drill, four teachers at a time were taken into a room, told to crouch down and were shot execution style with some sort of projectiles – resulting in injuries to the extent that welts appeared, and blood was drawn.

Indiana State Teachers Association@ISTAmembers

The teachers were terrified, but were told not to tell anyone what happened. Teachers waiting outside that heard the screaming were brought into the room four at a time and the shooting process was repeated.

This is NUTS.
We all want our teachers to know how to keep our children safe in the event of an active shooter. I can’t believe I’m typing this … but mock executions are not the answer. To look at this another way, we want to end sexual harassment, but we’re not molesting our employees either.
Sometimes, a training video is all you need.
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Flatulence as Harassment? It’s a Thing in Australia

Jon Hyman The Practical Employer
An Australian court has rejected an employee’s claim that his supervisor unlawfully harassed him by farting on him.
David Hingst sought 1.8 million Australian dollars ($1.3 million) in damages based on a claim his supervisor would enter his small, windowless office several times a day and “break wind on him or at him … thinking this to be funny.”

According to NBC Chicago, Hingst said that his supervisor at Construction Engineering, Greg Short, would “fart behind me and walk away. He would do this five or six times a day.” For his part, Hingst would respond by spraying Short with deodorant and calling him “Mr. Stinky.”

The court was not persuaded that the stink bombs were illegal.

In oral submissions, the applicant put the issue of Mr Short’s flatulence to the forefront. He submitted that ‘flatulence is substance’, not merely peripheral, and that the judge should have so found. The applicant submitted that the flatulence constituted assaults, and challenged the notion that he had accepted that the issue was peripheral.

Yet, the court found that the “farting” was not “bullying in the ‘legal sense.’”

This case got me to thinking, has an American tribunal ever dealt with a similar issue?

The closest I could find is Stanford v. Department of the Army, an EEOC decision. The case involved a white male alleging race and sex discrimination. The allegations stemmed from what he perceived as the Department’s different treatment of his farting in the presence of female co-workers as compared to that of an African American co-worker.

Complainant argues that he was “written up” because a Black female accused him of “farting” …. He argues that Black males can “fart” in the presence of the Deputy and other co-workers and not be disciplined….

We find … that complainant’s harassment claim is severe or pervasive enough to state a claim of harassment.

I’m not sure I would have reached that same result.

But here’s the thing. Can we all just act like adults? Yes, farts can be funny. My 10-year-old laughs at them all the time. But he’s 10. He’s not a grown-up, working at a job. So can we all try to act like grown-ups, treat each other with respect, and not make a federal case out of every trivial thing that happens at work? We will all be the better for it.

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The 9th Nominee for the Worst Employer of 2019 Is … the Fertile Firing

Jon Hyman The Practical Employer

MoMA PS1, a Queens, New York, art museum, has agreed to settle a pregnancy discrimination claim brought by Nikki Columbus, hired by the museum to direct its performance program.

She alleged that the museum rescinded her job offer after it learned she had recently given birth.

According to The New York Times, Columbus, five months pregnant when she applied for the job, chose not to disclose her pregnancy until after she was hired.

“I just went forward thinking that this is not their business, it’s not relevant to the job and to my abilities,” she told the Times. She added that Peter Eleey, the museum’s chief curator, told her during her interview that her predecessor had been “much less present” after she had a baby.

After being offered the job, Columbus asked Eleey for a soft transition-in period because she was recovering from just having a baby.

Eleey’s response, she alleged, “Why didn’t you tell me this two months ago?” A few days later, the museum rescinded its job offer, telling her that her conversations with Eleey “indicated that [she] would not be able to perform the job as it was structured.”

According to a museum spokesperson, “MoMA PS1 at all times has been compliant with the law and remains committed to supporting women and caregivers. We are satisfied with the agreement and are happy to put this matter behind us.”

Nevertheless, if you fire a new mom because she just had a baby, you might be the worst employer of 2019.

Previous nominees:

The 1st Nominee for the Worst Employer of 2019 Is … the Philandering Pharmacist

The 2nd Nominee for the Worst Employer of 2019 Is … the Little Rascal Racist

The 3rd Nominee for the Worst Employer of 2019 is … the Barbarous Boss

The 4th Nominee for the Worst Employer of 2019 is… the Flagrant Farmer

The 5th Nominee for the Worst Employer of 2019 is… the Fishy Fishery 

The 6th Nominee for Worst Employer of 2019 Is … the Diverse Discriminator

The 7th Nominee for Worst Employer of 2019 Is … the Disability Debaser

The 8th Nominee for the Worst Employer of 2019 Is … the Lascivious Leader

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The 8th Nominee for the Worst Employer of 2019 Is … the Lascivious Leader

Jon Hyman The Practical Employer

I can’t do any better of job than the EEOC did in describing the parade of horribles that one supervisor wrought at Sys-Con, a Montgomery, Alabama, general contractor:

According to the EEOC’s lawsuit, from December 2015 to May 2017, a supervisor at Sys-Con’s worksite at the Hyundai manufacturing plant in Montgomery, demanded sexual favors from two non-English speaking Hispanic female employees and watched pornographic videos in front of them. The EEOC further charged that the supervisor sexually assaulted one of the employees and sub­sequently taunted her, asking whether she “liked it.”

Thereafter, the EEOC said, the super­visor threatened to fire both his victims and their husbands, who were also Sys-Con employees, if they reported his harassment. When one of the employees refused his sexual advances, the supervisor terminated her.

For all of this, the EEOC settled the claims against Sys-Con for (what I consider to be) a paltry $70,000.

Folks, if you employ a supervisor who not only sexually assaults one of your employees but then taunts her about it after the fact, you might be the worst employer of 2019.

Big thanks to my friend Eric Meyer who brought today’s nominee to my attention at his Employer Handbook Blog.

Previous nominees:

The 1st Nominee for the Worst Employer of 2019 Is … the Philandering Pharmacist

The 2nd Nominee for the Worst Employer of 2019 Is … the Little Rascal Racist

The 3rd Nominee for the Worst Employer of 2019 is … the Barbarous Boss

The 4th Nominee for the Worst Employer of 2019 is… the Flagrant Farmer

The 5th Nominee for the Worst Employer of 2019 is… the Fishy Fishery 

The 6th Nominee for Worst Employer of 2019 Is … the Diverse Discriminator

The 7th Nominee for Worst Employer of 2019 Is … the Disability Debaser

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The Rumor Mill Can Create a Sexually Hostile Work Environment

Jon Hyman The Practical Employer

Just in time for Valentine’s Day, I bring you the story of a employee rumored to be sleeping with her boss to get a promotion. She wasn’t, but the workplace rumor mill sure thought she was.

Evangeline Parker began working for Reema Consulting Services, Inc., as an entry-level clerk. She received six promotions during her first 15 months of employment, ultimately to the position of Assistant Operations Manager.

Two weeks after her final promotion, Parker learned that “certain male employees were circulating … an unfounded, sexually-explicit rumor about her,” that she had slept with her manager, Demarcus Pickett, to obtain her management promotion. Participation in the rumor mill spread all the way up to the plant’s highest level manager, Larry Moppins, who asked Pickett, “You sure your wife ain’t divorcing you because you’re f–king [Parker]?”

Parker claimed that as the rumors spread, her coworkers, including those she supervised, treated her with “open resentment and disrespect.” It culminated in a staff meeting from which Parker was forcibly excluded, during which the rumor was openly discussed.

When Parker later tried to talk to Moppins about the issue, he blamed her for “bringing the situation to the workplace,” and told her that “he could no longer recommend her for promotions or higher-level tasks because of the rumor,” and that he “would not allow her to advance any further within the company.” A follow-up meeting several days later ended with Moppins screaming at Parker.

Thereafter, Parker and Donte Jennings (the man she accused of starting the rumor) filed harassment complaints against each other. In response, Moppins simultaneously issued Parker two written warnings and fired her.

In Parker v. Reema Consulting Services, the 4th Circuit held that Parker sufficiently pleaded that she had been subjected to a hostile work environment based on sex.

RCSI argued (and the district court concluded) that the rumors could not support a sexual harassment claim because they had nothing to do with Parker’s gender, but instead were about her conduct. The 4th Circuit rejected this argument and reversed the district court:

As alleged, the rumor was that Parker, a female subordinate, had sex with her male superior to obtain promotion, implying that Parker used her womanhood, rather than her merit, to obtain from a man, so seduced, a promotion. She plausibly invokes a deeply rooted perception — one that unfortunately still persists — that generally women, not men, use sex to achieve success.…

In short, because “traditional negative stereotypes regarding the relationship between the advancement of women in the workplace and their sexual behavior stubbornly persist in our society,” and “these stereotypes may cause superiors and coworkers to treat women in the workplace differently from men,” it is plausibly alleged that Parker suffered harassment because she was a woman.

No good ever comes from the workplace rumor mill, especially when the rumors are about an employee sleeping her way to the top. According to one recent poll, 97% of employees report that spreading rumors about a co-worker’s sex life is the most inappropriate office behavior.

What can you do to limit the harm caused by workplace gossip, especially that about an employee’s sex life? Consider the following 5 suggestions.

  1. Implement a “no-gossip” policy. A year ago I would have told that the NLRB would have serious issues with such a policy as a violation of employees’ rights to engage in protected concerted activity by talking about their terms and conditions of employment. Currently, however, the NLRB concludes that no-gossip policies are perfectly legal under its new Boeing rules on facially neutral handbook policies.
  2. Keep private matters private. If you don’t want employees gossiping about their co-workers’ private lives, then encourage employees to keep their private lives private. Employees can’t gossip about that which they do not know. That said, in the age of social media, when we are all connected with each other 24/7, this goal is increasingly difficult to accomplish.
  3. Set a positive example. The rumors in Parker were bad, but became that much worse when management began participating. If you want your employees to stop gossiping and spreading rumors about each other, set a positive example, and expect all employees to follow suit.
  4. Encourage complaints. Employees need to know that HR and management are receptive to complaints about gossip and rumors. Even if not sex-based, take the complaint, and treat it seriously. This means investigating, and talking to those starting or spreading the rumors to make sure they stop.
  5. Spread positive news. Is an employee doing a good job? Did he or she go above and beyond? Spread that type of news around the work place. The flip-side of negative rumors are positive stories about employees, customers, and culture. Good news stories will help drown out the negative.

And, for goodness sake, do not in any way, shape, or form permit employees to suggest that another slept her way to the top, or discipline the victim when she complains.

Also in The Practical Employer: Training Won’t Fix Your Hostile Work Environment 

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The 5th Nominee for the Worst Employer of 2019 is … the Fishy Fishery

Jon Hyman The Practical Employer

Atlantic Capes Fisheries agreed to pay $675,000 to settle a lawsuit filed by the EEOC alleging sexual harassment and retaliation.

The allegations that lead to the settlement, and this nomination as the worst employer of 2019?

A male supervisor, Fidel Santos, asked a new female employee, Esdeyra Rosales, about her personal life, stood close behind her while she was working, touching her back, hips, and buttocks. When she objected, he told her there was no work for her. When Rosales asked, and was granted, reassignment to another line, Santos’s harassment did not stop. He continued to make rude comments about her body and solicit her for sex. On one occasion, Santos approached Rosales from behind and asked her to touch his penis. When she refused, he pressed up against her, rubbing his penis against her buttock. Rosales complained to management, but they told her either to ignore it, or that they would “look into it.” The harassment, however, continued.

The harassment was not isolated to Rosales. Santos also allegedly harassed Margarita Fuentes, Mirna Pacaja, and others.

worst employer 2019

On Fuentes’s first day of work, Santos grabbed her buttocks. When she objected, Santos told her, “Here, anything goes.” Fuentes immediately complained to a manager, who told her that Santos was “crazy” and that she should just ignore him. The very next day, Santos came up behind Fuentes, grabbed her hand, pulled it behind her back, and placed it on his penis. When she resisted, Santos called her a “stupid old lady,” and that she was expected to do what she was told. Fuentes again complained to management, who again told her just to ignore it. The alleged harassment even after Fuentes ultimately secured a transfer away from Santos. He would find her, and call her “stupid” and “good for nothing,” question why she would not submit to him sexually, and hypothesize about her sex life.

Pacaja had worked for the fishery for 4 years before being transferred to Santos’s line. He allegedly similarly harassed her, almost from the start. He would grab her waist and hips, comment on her genitalia and buttocks, complain that she would not submit to him sexually, ask her to touch his penis, rub his hands on her breasts, and rub his erect penis up against her.

When Pacaja and Rosales ultimately complained to the HR manager, and then filed discrimination charges with the EEOC, they started receiving written warnings concerning alleged interpersonal issues with their co-workers. Within weeks they were both fired.

According to EEOC Senior Trial Attorney Sara Smolik, “The brave women who filed discrimination charges with the EEOC in this case alerted the agency to widespread sex harassment that was adversely affecting them and many of their female co-workers in the facility. Because they had the courage to step forward, the EEOC was able to investigate and bring this lawsuit to improve the working conditions for every­one.”

It also might lead to this employer being named the worst employer of 2019.

Previous nominees:

The 1st Nominee for the Worst Employer of 2019 Is … the Philandering Pharmacist

The 2nd Nominee for the Worst Employer of 2019 Is … the Little Rascal Racist

The 3rd Nominee for the Worst Employer of 2019 is … the Barbarous Boss

The 4th Nominee for the Worst Employer of 2019 is… the Flagrant Farmer

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When Can I Fire an Employee on Medical or Pregnancy Leave?

Jon Hyman The Practical Employer

medical and pregnancy leave One of the questions that clients ask me most often is, “________ is out on a medical/pregnancy leave (or just returned); can we fire him/her?”

My response, always: “Why?”

There are several reasons why you might need to fire an employee who is absent from work on, or just returned from, an otherwise FMLA or ADA protected leave.

  • While picking up the absent employee’s work, you discover he or she was not doing his or her job.
  • You uncover misconduct committed by the employee (fraud, theft, etc.).
  • You need to reduce headcount or eliminate the employee’s position.

Thus, my answer is always the same — “Would you have fired or RIFed the employee absent the otherwise protected leave of absence?” If so, then you can go ahead with the termination, understanding that a large amount of legal risk does exist. It does not mean that the employee is bulletproof, but it does mean that you need to tread carefully, make sure everything is well documented, confirm consistent treatment, and understand you will need to pay severance in exchange for a release or face the prospect of a lawsuit.

Case in point: Nieves v. Envoy Air, Inc. (6th Cir. 1/14/19).

Nieves worked as a gate agent for an affiliate of American Airlines for 19 years. His employer permits employees to fly for free, but prohibits employees from sharing their free travel benefits with anyone other than spouses or children. In April 2015, the employer randomly selected Nieves for an audit of its free travel program. In the middle of the audit, Nieves went out on an FMLA leave of absence. Upon his return to work, the audit continued, ultimately uncovering that Nieves had shared his travel benefit with ineligible individuals (his mother’s boyfriend, and non-children). Accordingly, the employer fired Nieves, just as it did with anyone it determined violate the free travel program.

Nieves sued, claiming that his termination, less than six weeks after he returned from FMLA leave, was in retaliation for the FMLA leave. The court disagreed:

Nieves argues that his travel log was given heightened scrutiny and that this raises an inference of a causal connection. However, nothing in the record supports that he was subject to increased scrutiny beyond the ordinary inquiry that follows a travel audit within the company. Envoy maintains that Nieves was flagged for an audit due to the number of entries on his travel log. According to American and its Matrix, an employee’s abuse of travel privileges is a terminable offense, regardless of whether the ineligible individual is currently listed or was in the past.

If you are going to fire someone during, or on the heels of, an FMLA or ADA leave of absence, you need a good reason, consistency, and the support of solid documentation. And even in that case, you face the choice of likely litigation, or a separation agreement with a payment of severance in exchange for a release. In all but the most egregious of terminations, I recommend the latter because the risk of the former is so great.

Also in The Practical Employer: Your 2019 Employment Law Compliance Checklist

NLRB Flip-Flops on Key Independent Contractor Test