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Employee or Independent Contractor - the Proverbial Tar Baby

There is no way to talk about employment issues without jumping headfirst into the muddy waters of employee versus independent contractor.

To help understand recent developments, a bit of background is in order. 

Historically, there was no issue. Employers paid employees for their time and labor. The amount depended on the relative bargaining power of each and of course was almost always determined by the employer. The employer simply paid a wage as low as possible that would still get people to come and work. And lest you think I’m talking about ancient history, look again at Upton Sinclair’s book, “The Jungle” which was mentioned in a previous article. Those practices were the rule rather than the exception. A worker received pay and that was it! No minimum wage. No overtime. No insurance of any kind. Show up. Do your work. Shut up. Take it or leave it.

We all know that things have changed. Federal and state laws require employers to provide various benefits to employees in addition to requiring the payment of a minimum wage and other compensation. There are even some that argue that the pendulum has swung too far…that all these requirements sometimes make it too costly for employers.

There is no doubt that employers face a lot of different costs, in addition to actual wages. These include FICA (employers portion of social security and Medicare), unemployment insurance, workers’ compensation insurance, health insurance, and overtime pay to name a few.

When you consider that if a person doing work for someone else, or a company is an independent contractor, all these costs go away, it is easy to see why employers would like you to be an independent contractor instead of an employee.

And there is the rub. While in the majority of situations it is easy to determine the difference between an independent contractor and an employee, there are an awful lot of gray areas. And it is in these gray areas that you find both unscrupulous employers trying to “beat” the system, as well as people that in good faith try to figure out on which side of the line they should be.

Because of the gray areas, the courts have been trying to define the differences for a very long time. Almost seventy-five years ago the issue made its way the U.S. Supreme Court. In Board v. Hearst Publications it held that:

"Few problems in the law have given greater variety of application and conflict in results than the cases arising in the borderland between what is clearly an employer-employee relationship and what is clearly one of independent, entrepreneurial dealing.”

Nor have things gotten any easier. If anything, the issue has become more complicated with modern technology. High speed reliable internet has resulted in a major increase in the number of people working from home. Moreover, employers continue to push the envelope, exploring every avenue that will allow them to classify people that do work for them as independent contractors instead of employees. Indeed, it has been argued that if some industries, such as ride sharing (think Uber and Lyft), package delivery services, and software developers to name a few, were forced to classify their workers as employees, they would collapse. 

Regardless of whether or not this is true, no one can argue that more and more companies are coming up with business models that rely on workers being independent contractors rather than employees.

So the challenge becomes to come up with rules and criteria that will allow us to make the distinction in specific cases.

Some are easy.

The worker that goes to work every day, clocks in, or goes to his office/cubicle, has a supervisor, works according to a schedule, and does the work assigned by his employer, is an employee. No gray areas here. Nothing confusing.

Now consider the flip side. You hire someone to come and paint your house. He quotes you a price. You agree to pay a deposit with the balance due on completion. He gives you a date by which the job will be completed. While the project is underway there are days where he works all day. There are days when he works a few hours a day. He provides his own supplies and equipment. This man is clearly an independent contractor. Again, no gray areas. Nothing confusing.

But in between those two easy examples, there is a tremendously huge gray area.

 Since the Supreme Court decision in Hearst, there have been a lot of federal and state decisions in which the court has attempted to set forth an objective test to distinguish between employees and independent contractors. It’s not easy and there have been a lot of conflicting decisions.

The most recent significant decision has come from California. The case of Dynamex Operations West, Inc. v. Superior Court may be pivotal. Not only does the court set forth objective criteria to determine whether or not an worker is an employee or an independent contractor, it sharply restricts the circumstances under independent contractor status will be found.

This case involved a lawsuit by drivers engaged by Dynamex Corporation as delivery drivers. Dynamex classified the workers as independent contractors, so they had no guarantee of receiving minimum wage, did not receive overtime compensation, workers’ compensation coverage or unemployment coverage. The workers sued, saying that regardless of what Dynamex chose to call them, they were in fact employees, entitled to all the benefits and protections that other employees received.

The court held in favor of the workers and fashioned the A-B-C test, described as follows:

1. Part A: Is the worker free from the control and direction of the hiring entity in the performance of the work, both under the contract for the performance of the work and in fact?

2. Part B: Does the worker perform work that is outside the usual course of the hiring entity's business?

3. Part C: Is the worker customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity?

These are tough tests for a person or entity engaging workers to fulfill. They are even more difficult because the court also held that the burden of proof is on the employer to establish ALL of these three tests. Failure to establish even one of the three will result in the worker being classified as an employee.

While it is true that the decision in this case applies only to California, a review of the history of prior California decisions in this area, and how they came to be adopted by other states and even federal courts, suggests that this is the direction that will be followed in the future.

This decision will likely affect many of the industries that make use of “independent contractors” such as ride sharing services, delivery services and so forth.

What does this all mean to you? Well given that many employers attempt to avoid their legitimate obligations by designating workers as independent contracts as opposed to employees, it is not unreasonable to expect that at some point you may find yourself in this position. Wanting to work for some person or entity, but being told that you will not be an employee, but instead an independent contract, and will be asked to sign documents to that effect.

Despite the hype that may accompany such a request, it is almost never to your advantage to be classified as an independent contractor. You will not have any of the benefits or protections provided under state and federal law to employees. You will be responsible for paying taxes that have not been withheld. You will have to pay all of the self-employment tax where as an employee you would pay only half. If you are hurt on the job, there is no workers compensation coverage for you. When you are terminated there are no unemployment benefits.

So what is your remedy?  

You can, and should bring a claim for all the benefits that you should have received as an employee. Back pay if you did not receive minimum wage or overtime. If you get hurt, for all the benefits you would have received under workers’ compensation. Payment of any self-employment taxes you night have had to pay. In short, everything.

And don’t worry about whatever you may have been required to sign saying that you are an independent contractor. Almost all states and certainly the federal government ignore those “agreements” and look to the actual relationship of the parties.

The pay-off can be substantial. Many states have punitive provisions (up to three times actual amount) for unpaid wages. If there have been any tax consequences for failure of the “employer” to withhold, you can recover those. If you were injured on the job, you can recover all medical bills and lost wages because the employer should have been providing workers’ compensation coverage. Likewise if the “Employer” is subject to health insurance coverage for its employees but provided you none because you were an independent contract. 

The list goes on and on, but you have to be aggressive and pursue your rights.

Remember, as with all of these issues, if you think you have a claim or a grievance, Be Your Own Lawyer will always review it for you at no cost.

Now You're a Manager - Enjoy!!

The Fair Labor Standards Act, covering pretty much all workers in the U.S. was designed to provide certain protections to workers. This is the law that sets the federal minimum wage. This is the law that requires employers to pay overtime for all hours worked over forty per week.

The protections provided by this law, as well as numerous state laws, cost employers money. Most employers accept this as a cost of doing business and comply with the laws. Other, less scrupulous employers, try to avoid their obligations, and sadly, there are ways to accomplish this. That is, an employer can save money on the backs of their employees.

In this article I’ll discuss the manager ploy. The Fair Labor Standards Act, as do related state laws, contains exemptions. This law was intended to protect regular employees, but in drafting it, Congress recognized that to apply it to everyone, across the board could create problems. Ergo, exemptions were put into place. 

One such exemption is for management employees. The Fair Labor Standards Act provides that the minimum wage and overtime provisions do not apply to employees that hold bona fide management positions.

Unscrupulous employers have jumped all over this exemption, especially in lower paid, small operations, such as convenience stores, smaller retail stores and smaller offices.

We call it the Now You’re a Manager game. But it’s not a game. It’s a deliberate ploy to deprive you of what you are entitled to under the law.

The good thing is, that the ruse will seldom stand up to scrutiny. These employers are the poster children of the adage “a little knowledge is dangerous”. They read, or somebody tells them that managers do not have to be paid overtime or minimum wage and that is as far as they get. They believe that by simply taking an employee and calling them a manager, they have successfully circumvented the law.

And sadly, if you don’t know any better, and accept it, they have.

There are thousands of employees working in small retail outlets, small offices, and convenience stores who have been duped into believing that they have actually been promoted, and are proud of the prestige that comes along with the title “manager”. They do not realize that all they have been given is the proverbial shaft, as they toil fifty and more hours a week for a set “salary” that includes no overtime and when averaged out over the actual hours worked, does not even come up to minimum wage.

To protect yourself, you have to know the complete law. 

Yes, the FLSA exempts managers, but they have to really be managers and that means much more than some sleazy employer hanging the title manager on them.

So if you find yourself in this situation, that is you’ve been designated a manager, but that position is in name only, what should you be looking for and what should you do?

There is an old adage from the world of poker that goes something like this…”when you are in a poker game and can’t figure out who the patsy is in the first thirty minutes, you’re the patsy!”

And so it is in the world of “management”. If your title is manager and you can’t figure out what the hell you’re managing, then you’re probably the patsy.

So what should you be looking for? 

Easy. 

What are you doing at work? 

Are you doing administrative things, like setting schedules, doing performance reviews of other workers, ordering inventory, or, are you out there doing the same thing that everyone else is doing? 

Are you making more money than other employees when you factor in overtime and actual hours worked? 

Do you have real authority? For example, can you hire and fire someone, or do you need your boss’s permission to do that? 

If the answers to these questions are coming up wrong, you’re the patsy.

So, what can you do? Plenty actually.

It should come as no surprise that this ruse has been tried many times before, and in most cases not very well. A lot of employers are under the mistaken impression that in order for an employee to be exempt from minimum wage and overtime requirements, it is enough to simply designate them as “managers”. Fortunately for you, life is not that simple. Federal and State governments have formulated a number of tests to determine whether or not an employee is a bona fide manager, and ironically, the job title is among the least important.

So if you think you are a faux manager, in that position of honor and esteem only so that your employer doesn’t have to pay you any overtime, start by confronting your employer.  

If that doesn’t work, and it probably won’t, you can file a claim for unpaid wages with the labor department in your state, followed by a lawsuit under either the FLSA or your state’s equivalent.  Be sure to keep careful records and copies of any and all internal company documents and records that pertain to employment…not just yours but other people doing the same kinds of work.

Just as with other things we warn your about, Be Your Own Lawyer will gladly provide a free case review. So if you think you’re the patsy, get in touch with us…we’ll look at what you send us and let you know if you have a claim or not. There is no cost and no obligation.

 Be Your Own Lawyer

Are You an Employee or a Slave?? Some Employment Issues

Switching topics for the next few posts I’ll address some employment law topics that may be of interest to you, regardless of whether or are an employee, or an employer. Small business owners especially can benefit from taking a look at some of these posts.

People have been working for other people, or for companies as long as there has been recorded history. So the concept of trading one’s time, expertise and effort for pay or some other reward is certainly not new.

What is new is the development of legal protections in the form of rules, 

regulations and court decisions that affect the employer/employee relationship.

Historically workers had no protection. I mean NONE! 

If you worked all day and didn’t get paid, there was not much you could do against an employer.

If you got hurt on the job, too bad.

If you had to work in hazardous conditions, so what?

If you weren’t getting paid enough, again, too bad – take it or leave it.

If you think I’m kidding, read Upton Sinclair’s book “TheJungle” based on living and working conditions in Chicago in the early part of the 20^th century.

We all know that since then things have changed. We’re all smug over the fact that there are “all” these laws to protect workers. We have laws that spell out the minimum wage, how many hours a week people can work, under what conditions they can work, etc., etc.

But as with anything, issues arise. Following the law and dealing fairly with employees is expensive. 

This should be obvious to anyone. If you have an employee making $10 an hour, and that is all you have to pay them, that is a lot cheaper than paying the $10, along with, unemployment insurance, health insurance, workers compensation, overtime, FICA and so forth.

While most employers are reputable, honest and try to deal with employees with integrity, the cost differential is great enough that there is a segment of employers that have, and will continue to find ways to circumvent the laws protecting employees. These people don’t care about their employees. They want to spend as little as possible. The ways that they can conjure up to avoid labor laws is limited only by human imagination.

In the next few posts we’ll talk about the protections that workers have – an conversely, what you, if you are an employer must do – under applicable laws. We’ll also discuss the tricks and gimmicks that unscrupulous employers (or in fairness, employers that may not know any better) will attempt to avoid those protections. We’ll also talk a little about what you can do if you think you’re not receiving the pay, benefits, or treatment that you’re entitled to.

Remember that if you think that you are not being treated fairly in your employment, Be Your Own Lawyer will always review your situation and advise you accordingly at no cost.

Be Your Own Lawyer

KINDS OF FORECLOSURE HELP SCAMS – MORE FROM THE ROGUE’S GALLERY

In the last post we talked about scams that focus on getting a homeowner to deed their property. Those really are less prevalent than schemes that just take money, because let’s face it, it’s a lot easier to convince someone to send you some money than it is to get them to deed their home over.

So in this article I’ll focus on some of the more common scams…those that just try to get you to pay money.

Phony Counselling or Phantom Help

In these, the scammer often represents that they have expertise or a special relationship with your lender. They represent that upon payment to them of a fee, they will negotiate a modification or partial forgiveness of your loan. Of course they have no such relationship, and anything they provide in terms of documents are what is readily available from government or consumer websites at no cost. With these scams at best you are paying money for something available at no cost to anyone. At worst you pay for a loan modification that never materializes.

Equity Skimming

This is a variation of the phantom help scam, but more damaging to you. Here you are not only told that the scammer is negotiating a loan modification, but are persuaded to send monthly mortgage payments to the scammer. You are assured that the money will be held in a special escrow account as a sign of good faith while the mortgage is modified. Of course that never happens. The scammer happily spends the money as soon as it is received. There is no modification and because money that was intended to be applied to your mortgage is paid to the scammer, your “hole” with the mortgage company gets deeper and deeper.

Forensic or Securitization Audits

In these deals the scammer sells you on the idea (repeatedly disproven) that if there is a flaw in the documents underlying the mortgage, or in the transfer of the loan from one company to another, that you will be able to stop foreclosure. It just “ain’t” so!! There has been a lot of press in the past few years concerning failure to properly document loan transfers, “robo-signing” missing documents, etc. These are all problems, but they are almost never insurmountable problems. So yes, while it is true that a forensic or securitization audit may turn up some issues, it is not realistic for you to believe that because a document was not attached to a complaint, or an assignment was improperly executed that your mortgage debt is going to somehow, miraculously vanish. Yet you will be charged hundreds (sometimes thousands) of dollars for an “audit” that is nothing more than a compilation of readily available public records.

Bait and Switch

This scam is a little more blatant. The scammers tell you that they are putting together a new loan for you…. One that will pay off your existing mortgage thus eliminating the foreclosure. They conduct a “closing” where you sign “loan” documents. In one version of this scam, buried in the “loan” documents is a deed whereby you transfer title to your home. Following the “closing” you are directed to make payments to the new “lender”. Of course your mortgage is never paid off. The scammer collects your monthly payments, and may even have the title to your home.

Conclusion.

Because of the large amounts involved, any issues related to owning a home will always being the scammers out of the woodwork, like maggots. While most people are honest, there is never any shortage of people willing to lie, cheat, steal, or do whatever it takes to separate you from what is yours. Because of the real estate crisis of the last decade, and because desperate people will clutch at anything to save their homes, there is a tremendous amount of misinformation and confusion…conditions in which scammers thrive.

Remember the old saying. If it seems too good to be true, it’s not! If you owe money to a mortgage lender, with the rare, bizarre exception, there simply is no “magic bullet” that will make the debt go away. Your $250,000 loan is not going disappear because somebody didn’t sign something correctly, or the current note holder can’t locate the original note.

Finally, remember that if you have any questions about any foreclosure help, Be Your Own Lawyer will review them for you at no cost and with no obligation.

Kinds of Foreclosure Scams

Now that we’ve warned you a bit about mortgage foreclosure scams in general, let’s talk about some specific scams to be on the lookout for.

First, understand that there are two general kinds of scams out there that purport to help you avoid or stop a foreclosure.

One kind of scam is designed to get title to your property so that the scammer can strip out whatever value is there. The second kind of scam just tries to get you to pay money for one reason or another, for one frivolous “service” or another.

In this blog we’ll look at the scammer that tries to get title to your property. Since once a scammer gets the title to your property they can do with it as they please, this is an incredibly dangerous scam. Not only are you deprived of your property, but you lose the ability to pursue legitimate avenues to address the foreclosure. And never forget the difference between a note and a mortgage. If you no longer own the property a mortgage foreclosure may not be all that much of a concern, but regardless of how the foreclosure turns out, you remain personally liable on the note.

So how do these scams work? As with crooks across the board, if you can conjure up a scenario, it probably has been used or at least tried.

Typically a homeowner with an actual or impending foreclosure is approached by someone offering to help them with their problem. They point out that because a foreclosure has been commenced (or the mortgage payments are way very far behind) that the homeowner’s credit is not good enough to allow him to refinance and pay off the loan being foreclosed. The solution? Deed the property to an “investor” with sterling credit. For what appears to be a very reasonable fee, they will then refinance the houses and then “sell” it back to the homeowner. While this is happening the homeowner is allowed to remain in the house as a “renter”.

Will that ever happen? OF COURSE NOT!

As soon as the “investor” has title to the property they will use it to their advantage. If there is substantial equity in the property they will refinance it, or take out a second mortgage, pocketing the money. If that is not possible, they will rent the property (after evicting the homeowner). They may sell the property to someone else on a land contract, charging a very low down payment followed by monthly payments made to the scammer.

The common threads of course are that the homeowner has lost their property, the legitimate lender is not being paid and any value in the property, whether in the form of financeable equity or monthly income goes to the scammer.

Since the mortgage crisis of 2007-2008 there have been numerous government programs instituted to help homeowners in trouble with mortgages. These usually involve some form of re-negotiation of the mortgage, or arrangement to pay arrearages over time.

The single most important thing to know is that none of these remedies or programs… that’s right NONE – not a single one, require you to transfer the title of your home.

So the moment someone approaches you and even hints that the “way out” is to deed the property to someone else, that should be a giant red flag and you should show them the door.

As a reminder. If you are facing foreclosure, and if you are approached by anyone suggesting that you transfer title to your home, Be Your Own Lawyer, as a service to you, will review your situation, and advise you concerning any "help" offer you may have received, at no cost.

Mortgage Foreclosure Scams

There have been hundreds, no, probably thousands of articles written about the mortgage foreclosure crisis. Sadly though, not nearly enough has been written about the various scams that are out there.

It's a sad fact that whenever people have problems, face challenges, or experience pain, there are always those roaches coming out of the woodwork to take advantage of their plight.

And so it is with the foreclosure crisis. While the government has tried to help, the myriad of laws passed since the foreclosure wave started about ten or twelve years ago, has made the whole area a virtual feeding frenzy for crooks, con artists and swindlers.

Here are some things to remember:

1. You do not need any of these so-called "mortgage rescue" scams. None of these people have the proverbial "silver bullet" to make your mortgage go away.

2. A lot of the advice you will find is just plain wrong. For example as nice as it might be to believe, it is highly unlikely that the indebtedness on your home is going to magically disappear because of some minor technicality.

3. If a pitch sounds too good to be true, it probably is.

4. You do not need to pay anyone to get information about government programs such as loan modification. All of this information is available at no cot from numerous government websites.

5. There is never - absolutely NEVER any reason to do business with any company that offers to save your home by having you deed it to an "investor" or "trust". You can bet with near 100% certainty that any proposal like this is a scam. Don't fall for it.

All you need to do is google "foreclosure scam arrest" and you will see dozens of cases where scammers have been prosecuted, but sadly, not before taking millions of dollars from people ready to anything to save their homes.

Do not jump at any "easy" solution. There are none. Take time to research all the options. Research the foreclosure laws in your state carefully so you will have an idea of what you can and cannot do.

Finally, if you are considering any kind of foreclosure help at all, contact us at Be Your Own Lawyer. Our free case assessment will always include a review of any programs you are considering. Your case won't be our first rodeo in the foreclosure arena and without charging you a dime we can at least warn you about scams and get you pointed in the right direction.