The consultant’s complaint

Three months ago, marketing coordinator Kristin Berkery filed a sexual harassment and retaliation lawsuit against her former supervisor, John Joseph Thompson, of Elk Grove’s tourism bureau.

In the #MeToo era, this is a familiar story. But Berkery’s status as an independent contractor also raises questions regarding the dynamic between employers and contracted workers.

“I didn’t have an HR department,” Berkery told SN&R. “I didn’t have anybody else. It was just he and I and one other contractor. There was nobody for me to go to to say, ’I can’t work like this.’”

Now, Thompson is resigning. Following a special meeting held on July 22 by the tourism bureau’s board of directors, a statement announcing the executive director’s resignation was released.

Explore Elk Grove did not respond to multiple requests for comment. But Berkery’s attorney said his client’s case isn’t an isolated one.

“Mr. Thompson wanted a sexual relationship with Kristin Berkery,” said Fair Oaks attorney David Graulich, who specializes in employment law. “He tried to use his leverage as her client to advance his private agenda—a common and appalling problem for female entrepreneurs like Ms. Berkery.”

According to Berkery, the harassment began soon after she signed a month-to-month contract with the tourism bureau last August to develop marketing strategies to increase tourism in the Elk Grove area.

What she said started with inappropriate text messages and phone calls turned into an unbearable working situation, culminating in Thompson allegedly excluding her from communications about projects in which she was directly involved.

As an independent contractor, Berkery said she contacted Rachael Brown, a city of Elk Grove employee and Explore Elk Grove board member, to report the harassment. The next day, Berkery said, Thomspon fired her via email.

Both Brown and the bureau are named in the suit. Thompson will continue to work for Explore Elk Grove until Aug. 15, according to a press release from the tourism bureau.

Graulich says his client is representative of the millions of Americans taking part in the “gig economy.”

Market research firm Edelman Intelligence released a study in 2017 that found that the freelance economy is growing three times faster than the overall U.S. workforce. Intuit found that the number of Americans who were part of the gig economy in 2016 was 34%, expected to grow to 43% by next year.

While working independently may allow more control over one’s professional life, it has drawbacks.

Mariko Yoshihara is legislative counsel and policy director for the California Employment Lawyers Association, which has worked with state lawmakers on bills to help strengthen sexual harassment laws. According to Yoshihara, independent contractors are covered by state harassment protections, but employers often get away with harassment due to the common misconception that contractors do not fall under these laws. This misconception is reinforced because contractors rarely have an in-office advocate who can respond to complaints and questions.

Yoshihara said that the professional relationship between an employer and an independent contractor can be tricky to define, making it difficult for the latter to understand their rights.

Graulich said independent contractors are especially vulnerable because their contracts could be terminated at any time.

“One of the biggest barriers to workers being able to file a complaint is the fear of retaliation,” Yoshihara said. “They basically are putting everything on the line in order to stand up for their rights.”

In 2018, the test for determining whether a worker falls under independent contractor or employee status was simplified to a three-part test in a landmark California Supreme Court decision. The Dynamex ruling was controversial, as it jeopardizes independent contractor status for those who may want to maintain that classification. But Yoshihara said the decision made things clearer.

“It used to be a multi-factor, pretty confusing test,” Yoshihara said. “I think in that situation, employers probably just took their chances and misclassified workers as independent contractors. When the Dynamex decision came out, it was much clearer.”

Berkery is seeking damages associated with the losses she says were suffered by her own business, which she estimates at $36,000 since leaving Explore Elk Grove in early January.

As far as Thompson’s departure, Berkery said it is a positive step for the city, but she has mixed feelings.

“I have not heard the tourism board or the city acknowledge me and my complaint publicly other than to say that there is a lawsuit, and that is a real concern to me,” Berkery said. “Someone who has been a resident of Elk Grove for a long time, who has two small children and owns a small business, the fact that they don’t see the humanity in that is just appalling.”