Sherlock Holmes is hot at the moment: movies, television shows on both sides of the Atlantic, and way too many deerstalker hats and large pipes over Halloween. Kareem Abdul Jabbar has now added a new (and very good) novel to add to Holmesian canon: Mycroft Holmes. Plus, the Holmes-Watson dynamic is a trope played broadly across the arts.
The question of course is why is Sherlock Holmes so popular now. Holmes himself instructed us on how to answer such questions: “How often have I said to you that when you have eliminated the impossible, whatever remains, however improbable, must be the truth?” The Sign of the Four. What is impossible is a fascination with all things Victorian; all things English; or even all things Conan Doyle. Sherlock endures because he alone solves our problems.
Turning Holmes loose on an employment law problem fills a slow day on Baker Street.
Sherlock Holmes is famously a consulting detective, the only one in the world by his own estimation. When a more traditional detective, either working for the police or a private agency gets into trouble, they come to Holmes for advice. And famously, he also solves crimes for his own clients as well – but here let’s assume that most of his work comes from Scotland Yard (poor Lestrade does need quite a bit of consulting, after all).
Would Holmes be a contractor or employee?
As you can see, it’s a dead-heat, so it is certainly conceivable that Sherlock Holmes would be considered an employee, and accordingly protected by applicable employment laws. Yet, such a legal conclusion not only upends our traditional view of Holmes as the ultimate independent contractor but also interposes a legal construct that will shatter both Homes and Scotland Yard.
There is just no way in hell that Holmes will accept an employee ID card.
There is also no way in hell that Scotland Yard could ever accept such an employee.
How About That 7% Solution? Sherlock, in addition to being anti-social, is also one of the world’s most famous drug addicts. His mind abhors stagnation, and he uses cocaine to keep himself occupied when he is not working. Thankfully, 42 U.S.C. § 12114 allows employers to prohibit the illegal use of drugs at the workplace, and mandates that employees cannot be under the influence of illegal drugs in the workplace – regardless of their disability. Even when drugs are not illegal, like is the case with marijuana in Colorado, an employer can fire employees for off-duty drug use. Coats v. Dish Network, LLC, 350 P.3d 849 (2015).
Is There A Requirement To Accommodate Our Favorite High Functioning Sociopath? Recent incantations of Sherlock Holmes have made clear that he is not a psychopath, but instead is a high functioning sociopath. Sociopaths have a disregard for laws and social more as well as the rights of others, do not feel remorse or guilt, and are volatile, including exhibiting emotional outbursts and fits of rage. This certainly does not sound like the model employee, and one can see this employee violating codes of conduct, anti-harassment policies, and even potentially impacting workplace violence policies. As my colleague Robert Anderson has pointed out here, the EEOC has noted that the DSM-V is “an important reference by courts,” and accordingly Sherlock could be disabled, and need an accommodation, unless his outbursts would pose a direct threat to the health or safety of his colleagues at the Yard that could not be eliminated or reduced by such an accommodation.
And…. Time and space preclude running this litany ad nauseam.
But, this recap on Holmes does illustrate a significant problem.
The current legal tests for determining who is an employee and who is an independent contractor frustrate both Holmes and the Yard. The Silver Blaze (“…for one true inference invariably suggests others…”) This is perhaps a compelling logic for allowing sophisticated parties to opt out of the current multi-factor tests. But, pending that legislative solution, it is also a compelling logic for Holmesian analysis rather than applying time-worn assumptions to the question of who is (and ought to remain classified) an independent contractor.