The Second Circuit has continued its emphasis on employment law cases this week with a new case today, Salamon v. Our Lady of Victory Hospital, discussing whether a physician with staff privileges at a hospital, is an employee of the hosptial (which would allow the employee to sue under federal discrimination laws.)

The Court today said "Maybe" and has sent the case back to District Court for final resolution of the issue.

Wait a Second blog has the particulars:

The Court of Appeals ruled that a gastroenterologist with staff privileges at Our Lady of Victory Hospital might be an employee for purposes of suing the Hospital under the employment discrimination laws even though she set her own hours and the Hospital did not pay her salary. The trial court has to resolve whether the Hospital exercised sufficient control over her employment to trigger the protections of Title VII of the Civil Rights Act.

The case is Salamon v. Our Lady of Victory Hospital, decided on January 29, 2008. The Court originally resolved this appeal last fall but withdrew the opinion. Today we receive the final opinion.

The Court looked at a variety of factors  . Most important to the Court was the fact that the physician  was subjected to the Hospital’s quality assurance department, which included a peer review process.  The Second Circuit said that this factor could tip in the employee’s favor and that it was best left to the District Court to decide that issue:

In short, whether the methods that the hospital required of Salamon merely reflect professional standards or demonstrate a greater degree of control sufficient to establish an employee-employer relationship is a factual issue that is not resolved by the current record.

For hospitals in Connecticut, this decision should be reviewed carefully and the multi-factor test that the court applied should be examined closely as well.  The first factor on this list is particularly important. So what are those factors?

[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.

One thing is clear — hospitals should not rely on outdated systems for classifying who is an employee or not. A re-evaluation of doctors relationships with the hospital would ensure that these types of issues don’t occur in the future.