Are partners employees under the discrimination laws?

Larry Ribstein —  14 December 2011

The WSJ Law Blog reports that New York Supreme Court Justice Marcy Friedman held that a former Holland & Knight partner wasn’t an employee under city and state anti-discrimination laws and therefore wasn’t entitled to age discrimination protection for his expulsion at age 55. 

Per the Law Blog’s summary, the ex-“partner” argued that he was “utterly unable to influence the firm to do much of anything” (which will ring true to many law partners). But the Justice reasoned that plaintiff “offered no evidence to show that he didn’t have a stake in Holland & Knight, or that he didn’t have a right to elect managing partners or directors.”

A few years ago I blogged an overview of the vague and confused law on the subject, including the views of Judges Easterbrook and Posner in an important case, and the leading Supreme Court opinion.  For the full and up-to-date examination, see Bromberg & Ribstein, §2.02(b)(2).  

Until the Court clarifies the law (as Judge Easterbrook sought to do), these cases will multiply as Big Law disintegrates, dumping partners along the way.

Larry Ribstein

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Professor of Law, University of Illinois College of Law

One response to Are partners employees under the discrimination laws?

  1. 

    I addressed this subject last year at http://kowalskiandassociates.wordpress.com/2010/09/26/are-partners-protected-by-antidiscrimination-laws/ and concluded that law firm partners are employees at will and are subject to the protections of the antidiscrimination laws. The only exception is where a partner is in position of control.

    The skein of federal law and state laws provides a safety net of protections against discrimination in employment decisions predicated on an employee’s religion, sex, race, origin, sexual orientation and other statutorily identified classifications. The issue is the applicability of these antidiscrimination statutory schemes to law firm partners. If the presumption is that law firm partners are owners of the enterprise, they are employers and not employees. However, the plain facts are that law firm partners are in fact employees and, indeed, employees at will.

    As noted, the only instances in which partners have not been held to be employees is where they have been in positions of control. The Court in Weir v Holland & Knight concluded that the plaintiff did have a leadership position and the ability to control and influence partnership decisions. Thus, in this instance, he was not afforded the rights of an employee.