The phrase “hoisted with his own petard” is a Shakespearean idiom used in Hamlet, meaning “to cause the bomb maker to be blown up with his own bomb.” I know this because Wikipedia.

Sometimes this can happen in a lawsuit. Plaintiff Kyle Johnson, retained by a South Carolina firm to perform consulting services, claimed he was misclassified and should have been an employee. He alleged wage violations, wrongful termination, and various other employment law claims, most of which relied on his central premise — that he was really an employee, not an independent contractor.

His claim with the best acronym, however, was his SCUTPA claim — South Carolina Unfair Trade Practices Act. A SCUTPA claim exists where someone has taken money through deceptive trade practices in a way that negatively impacts the public interest. Johnson alleged that the defendant violated SCUTPA because it misclassified him “in order to avoid payroll taxes, overtime pay and other employment-related expenses.” This, he claimed, was against the public interest.

Not so, said the court.

If he’s an employee, as he claimed, then he can’t make a SCUTPA claim. Employer-employee disputes are private, not matters of the public interest.

Had Johnson gone along with his classification as an independent contractor, he would have had a business-to-business relationship, and he might have been able to bring his SCUTPA claim. By alleging he was misclassified and really an employee, he blew up his own claim.

A “petard” is a small bomb used for blowing up gates and walls when breaching fortifications. In Johnson’s case, it can also be used to blow up one’s own lawsuit. Boom.

© 2018 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.