Your business, a limited liability company, or LLC, hires Jesse Pinkman, who operates Pinkman’s Employment Selection Services, LLC, (PESS) to interview candidates for a bookkeeper position with your company. Pinkman plans to conduct these interviews after hours in a room of your business and you have provided him with a key to do so. You agree to pay Smith $150 per interview and direct that he interview three (3) candidates and complete the interviews in one week.
On the way to the first interview, Pinkman, who lives in Lakeland, drives 40 miles out of his way to visit his girlfriend, Suzy Jones. Near Suzy’s house, Pinkman rear ends a car driven by Jorge Costanza who is stopped at a red light. Before the crash, Pinkman was using his i-Phone to text message the candidate he is scheduled to interview to inform her that he was going to be around fifteen to twenty minutes late. Mr. Costanza’s mouth is cut on the steering wheel but he is otherwise uninjured and drives off after both parties exchange insurance documentation and give information to a police officer who came to the scene.
Pinkman arrives at your business 45 minutes late but the candidate, Emily Litella, is still waiting for him. Emily looks old, pale, wrinkled and frail. In fact, she is 65 years old. Her resume lists her former employment and education, but no dates. Pinkman’s first question to Ms. Litella is: “How old are you anyway?” He laughs and adds: “You look older than my girlfriend’s business law professor!” Five minutes into the interview, Pinkman tells Ms. Litella that she is not qualified for the job and will not be hired.
The next morning, you receive a call from a lawyer representing Jorge Costanza asking for $50,000 to settle a personal injury action his client is considering. Later that morning, you receive a call from Ms. Litella’s lawyer asking for $50,000 to settle an employment discrimination action. You immediately call your lawyer for advice.
Your lawyer tells you that Pinkman will probably be considered an independent contractor rather than an employee of your company. What reasons does she give for this determination?
What effect may finding that Pinkman was an independent contractor have on the ability of Costanza to file a personal injury lawsuit against your company?
Assume that rather than an independent contractor, Pinkman is an employee of your business. What defense could be raised on your company’s behalf to avoid liability to Jorge Costanza?
What law does Ms. Litella’s lawyer cite in support of her discrimination claim? Assuming she is successful in her claim, what personal assets (such as your house or bank account) could she obtain in payment of a judgment based upon her claim?