If you have signed a contract of employment, you may have noticed a line that stated you are an “independent contractor” or an employee. Perhaps it’s a full paragraph dedicated to the topic, or maybe it’s simply assumed in the title of the agreement. When difficulties arise in an employment relationship, many people wonder, what is the significance of this determination of independent contractor vs. employee?
People are often surprised to learn that the mere designation of an employee as a “1099” employee (named for the IRS form on which independent contractors report their income), and even the filing of taxes in accordance with that designation, does not necessarily mean that the individual is actually an independent contractor rather than an employee.
As a general rule, employees have greater legal rights than independent contractors. They can bring suit under a range of federal and state laws for unpaid wages that entitle them to financial penalties and attorneys’ fees. On the other hand, contractors often have to resort to common law claims, such as breach of contract. In addition, some government departments will help employees recover unpaid wages, while contractors are largely on their own.
Here are several factors that a court will consider in determining whether someone is an independent contractor (a 1099) or an employee. None of these factors is conclusive, on its own but rather they are all considered together by a court, in addition to other factors:
1. Exclusive Employment
One of the most important factors in determining whether someone is an employee or an independent contractor is whether their employment is required to be exclusive with that employer.
For example: If you work at a doctor’s office and your employer requires you to sign an agreement that you will not work at any other medical facility, or in even more extreme cases, that you will not work at any other job without your employer’s permission, then this tends to suggest that you are an “employee.” On the other hand,
2. Right of Supervision
Independent contractors are generally an unsupervised bunch. A true independent contractor is someone who is hired to come into a job site, do a job, and then leave, even if it’s on a regular basis.
For example: The engineer who repairs machines at a shop may come in only as required for individual repairs. No one stands over his shoulder and tells him what to do, how long to be there, what hours to put in, or anything else like that. Rather, he is hired for specific jobs, brought in, and then he leaves.
The right to control someone’s work and to tell them what to do, when to be at the work site, when to leave, what to wear, and many other incidentals of employment, imply a direct employment relationship rather than that of an independent contractor. Once again, none of these factors are binding, but this is another consideration.
3. How the Worker is Paid
Less important factors, such as payment, should also be considered. Are you paid on a salary, a commission, or are you paid by some other arrangement? Do you invoice the company or do they determine your pay for you? Each of these is an important factor in determining whether you’re an independent contractor or an employee.
4. Work in A Specialized Field
In some cases, statutory law controls whether you are an employee or an independent contractor. For example, due to the abuse of “independent contractor” status by employers, the legislature in Pennsylvania has passed an important statute governing whether construction workers are employees or independent contractors.
Many construction employers prefer to classify all of their employees as independent contractors on the idea that they then can avoid Worker’s Compensation payments. This has been determined to be unlawful in Pennsylvania, and the statute provides for a specific set of factors that must be considered. Thus, if you’re in construction or any other number of specialized and regulated fields, your status as an employee or independent contractor may depend on a more specialized analysis.
Conclusion
It is important to note that nothing in this article should be taken as legal advice. Every situation involving independent contractors and employees is unique and depends on more factors than we can list here. However, the important takeaway from this article is this: just because you’re classified as an independent contractor doesn’t mean that you actually are and vice versa. Properly setting up an employment arrangement from the start is important, and even after things have gone south between an employer and an employee, making these determinations can be important.
Furthermore, if you find that there are statutory protections for you as an employee that are not being given you, your employer’s response that you’re an independent contractor is not necessarily the final word. Call the attorneys at the Cornerstone Law Firm today, and let’s discuss with you how we can clarify your existing relationship or protect you if your rights are being violated or how we can ensure a strong legal relationship with your workers.
Independent Contractor vs. Employee – Does it Matter?
/in Business Law, Contracts /by Cornerstone Law FirmIf you have signed a contract of employment, you may have noticed a line that stated you are an “independent contractor” or an employee. Perhaps it’s a full paragraph dedicated to the topic, or maybe it’s simply assumed in the title of the agreement. When difficulties arise in an employment relationship, many people wonder, what is the significance of this determination of independent contractor vs. employee?
People are often surprised to learn that the mere designation of an employee as a “1099” employee (named for the IRS form on which independent contractors report their income), and even the filing of taxes in accordance with that designation, does not necessarily mean that the individual is actually an independent contractor rather than an employee.
As a general rule, employees have greater legal rights than independent contractors. They can bring suit under a range of federal and state laws for unpaid wages that entitle them to financial penalties and attorneys’ fees. On the other hand, contractors often have to resort to common law claims, such as breach of contract. In addition, some government departments will help employees recover unpaid wages, while contractors are largely on their own.
Here are several factors that a court will consider in determining whether someone is an independent contractor (a 1099) or an employee. None of these factors is conclusive, on its own but rather they are all considered together by a court, in addition to other factors:
1. Exclusive Employment
One of the most important factors in determining whether someone is an employee or an independent contractor is whether their employment is required to be exclusive with that employer.
For example: If you work at a doctor’s office and your employer requires you to sign an agreement that you will not work at any other medical facility, or in even more extreme cases, that you will not work at any other job without your employer’s permission, then this tends to suggest that you are an “employee.” On the other hand,
2. Right of Supervision
Independent contractors are generally an unsupervised bunch. A true independent contractor is someone who is hired to come into a job site, do a job, and then leave, even if it’s on a regular basis.
For example: The engineer who repairs machines at a shop may come in only as required for individual repairs. No one stands over his shoulder and tells him what to do, how long to be there, what hours to put in, or anything else like that. Rather, he is hired for specific jobs, brought in, and then he leaves.
The right to control someone’s work and to tell them what to do, when to be at the work site, when to leave, what to wear, and many other incidentals of employment, imply a direct employment relationship rather than that of an independent contractor. Once again, none of these factors are binding, but this is another consideration.
3. How the Worker is Paid
Less important factors, such as payment, should also be considered. Are you paid on a salary, a commission, or are you paid by some other arrangement? Do you invoice the company or do they determine your pay for you? Each of these is an important factor in determining whether you’re an independent contractor or an employee.
4. Work in A Specialized Field
In some cases, statutory law controls whether you are an employee or an independent contractor. For example, due to the abuse of “independent contractor” status by employers, the legislature in Pennsylvania has passed an important statute governing whether construction workers are employees or independent contractors.
Many construction employers prefer to classify all of their employees as independent contractors on the idea that they then can avoid Worker’s Compensation payments. This has been determined to be unlawful in Pennsylvania, and the statute provides for a specific set of factors that must be considered. Thus, if you’re in construction or any other number of specialized and regulated fields, your status as an employee or independent contractor may depend on a more specialized analysis.
Conclusion
It is important to note that nothing in this article should be taken as legal advice. Every situation involving independent contractors and employees is unique and depends on more factors than we can list here. However, the important takeaway from this article is this: just because you’re classified as an independent contractor doesn’t mean that you actually are and vice versa. Properly setting up an employment arrangement from the start is important, and even after things have gone south between an employer and an employee, making these determinations can be important.
Furthermore, if you find that there are statutory protections for you as an employee that are not being given you, your employer’s response that you’re an independent contractor is not necessarily the final word. Call the attorneys at the Cornerstone Law Firm today, and let’s discuss with you how we can clarify your existing relationship or protect you if your rights are being violated or how we can ensure a strong legal relationship with your workers.
What Do I Do with the Will When A Loved One Passes Away?
/in Estate Administration, Probate, Wills /by Cornerstone Law FirmWhen you experience a death in the family, the details of wrapping up the loved one’s legal affairs can seem overwhelming. One of the first questions that many people ask after the death of a loved one is, “What do I do with the Will?”
“What do I do with the Will?”
The short answer to this question is that the original Will (not a copy) is vital to the administration of an estate. Once this original is located, it should be taken to an attorney for review, along with any information you have on your loved one’s finances and liabilities. The purpose of this visit to an estate administration lawyer is to determine whether probate is necessary.
In many cases, in order to administer an estate, the Will must be probated. This means that it needs to be filed with the Register of Wills under the auspices of the Orphan’s Court at the Court of Common Pleas in the County where the decedent was living at the time of death.
What is Probate?
Probate is the process of liquidating estate assets, paying estate debts and taxes, and ultimately ensuring that the beneficiaries and survivors incur no future liability on the money they receive from the estate.
But probate is not always necessary, and avoiding probate can save time and money. A good estate administration attorney can help you determine whether the Will should be probated or not. Accordingly, if someone in your family has passed away recently and you’re attempting to figure out what to do with their Will (or in the absence of a Will, what to do with their assets and liabilities) then contact the Cornerstone Law Firm. Our attorneys can help you to figure out what to do with the Will, whether to probate the estate, and how to maximize the value of the estate to its beneficiaries.
Contact us today for a free consultation on your estate so we can help you handle these details during your time of loss.
What is a “Plaintiff?”
/in Lawsuit /by Cornerstone Law FirmIn today’s post, we continue our series on litigation terminology, helping you to understand the various terms used when you’re involved in a lawsuit. Today’s question is, “What is a plaintiff?”
The word “plaintiff” is the title of the individual who initiates a lawsuit—someone who seeks to compel something from a Defendant via a court proceeding. They may be seeking money or “equitable” remedies, such as an injunction.
An over-simplified way of thinking about it is that he is opposite the defendant. Everyone knows what a defendant is—the one being sued. The plaintiff is the person bringing that lawsuit.
Another helpful way to understand this term is this: the existence of a “plaintiff” in a lawsuit is a tip that the matter is a Civil Suit rather than a Criminal one. In other words, no one is going to jail at the end of this trial. Rather, the litigation seeks a civil remedy of money or a court order determining a dispute between private parties. One final way of thinking about a plaintiff is that he is on the front side of the “v” in a lawsuit (Plaintiff v. Defendant).
We hope this explanation of the term plaintiff is helpful. If you have other questions related to your litigation, feel free to set up an appointment with the attorneys at the Cornerstone Law Firm for a free consultation about your case. Our litigation attorneys can explain the terminology, and more importantly, the strategy and rights you have in bringing or defending your case.
Injured on 222? We Can Help.
/in Car Accident, Personal Injury /by Cornerstone Law FirmPennsylvania Route 222, which runs through the heart of Berks County, is becoming not only the busiest but also the most dangerous road in the area. 222 has long been a source of economic growth to Berks County and to Reading, but in recent years, it has become more and more dangerous and has resulted in more and more accidents. If you’ve been injured on 222 in a car accident, the personal injury attorneys at the Cornerstone Law Firm can help you.
Pursuing Settlement
Car accidents can be a life-changing experience. Between the surgeries and rehabilitation required, these injuries demand an enormous amount of time and attention from the injured party. Other results of an accident, such as loss of earnings and chronic pain can create significant stress for the injured victim.
Having a personal injury attorney here in Berks County who understands your situation is important in dealing with the insurance company and any responsible party after the accident. The party responsible for your accident and the insurance companies involved—including your own insurance company in many cases—bear responsibility to ensure that you are made whole after the accident. This includes not only covering your medical bills and settling medical liens, but also putting together an appropriate settlement given the pain involved in your accident and the time you’ve lost at work and from the activities you love.
The process of pursuing settlement for your injuries doesn’t have to be as painful as a car accident. Frequently, cases can be resolved without the need of filing suit or going to trial. All the same, it’s important to have a lawyer who is able and willing to take your lawsuit to trial if necessary.
We can help.
If you or someone you know has been involved in a car accident on 222 or elsewhere in Berks County, Pennsylvania, call the personal injury lawyers at Cornerstone Law Firm for a free consultation. We don’t get paid until you get paid. Call us for a risk-free, no-obligation consultation about your case.
What is a “Whistleblower?”
/in Whistleblowers /by Cornerstone Law FirmIn the past 50 years, many laws have been passed to protect “whistleblowers.” In today’s world, our society is encouraging more and more people to step up and speak up when they see a problem.
So, what happens when an employee speaks up at their job and lets someone know about illegal conduct and then is subsequently fired for making such a report? That person is what we call a whistleblower, and they are entitled to protection under the law.
Whistleblowers report conduct to their bosses and to others
When a whistleblower speaks up about something they believe is illegal or wrong, they typically do so internally. That is, they make a report to their boss, to a human resources director, or to someone within their company who has been designated to hear reports of such wrongdoing. This is called an internal report.
In other situations, the whistleblower, either after making an internal report that is ignored, or at the outset, makes a report to someone outside of the company. They may contact a government entity such as the Securities and Exchange Commission (SEC) to let them know about insider trading. Or perhaps they contact the Occupational Safety and Health Administration (OSHA) to let them know about unsafe practices in the workplace that could harm another employee. This is called an external report. Both of these types of reports can be protected under the law depending on the circumstances.
A whistleblower should not face adverse employment action
When a whistleblower is fired, demoted, or even passed over for a promotion or a bonus because of a report or illegality or wrongdoing, they are entitled to protection under the law. There is a complex web of state and federal statutes that protect the whistleblower in these circumstances, and there are too many to list here. The advantage of the sheer number of statutes involved, however, is that whistleblowers often have a weapon to fight back with when an employer wrongs them.
For example, a state employee in Pennsylvania may be protected under the State Whistleblower Act. In addition, if the person is a mandatory reporter who reports child abuse and suffers adverse employment action for it, they may be protected under the Mandatory Reporter Act. Federal statutes include the Food Safety Modernization Act, which protects those making reports of the mishandling of food in the food service industry.
Conclusion: If you’ve been discriminated against for whistleblowing, fight back!
There are too many statutes to even list here, so if you’ve been fired or otherwise discriminated against for whistleblowing, contact the attorneys at Cornerstone Law Firm today. We’ll discuss your case and your options with you in a confidential, free consultation, so you know your options and the best path forward.
My Partner Froze Me Out!: What to Do in A Shareholder Dispute
/in Business Law /by Cornerstone Law FirmWhen you run a business with someone else, conflicts can arise. Most business partners should be able to work out there differences together, but unfortunately, it’s a fact of life that this isn’t always the case.
Occasionally, when things get really bad, one partner or shareholder or director will make a poor decision and “freeze out” the other owner of the company. This may happen in a physical way where the part owner changes the locks on the building, or in a less obvious way, such as where one owner tells all of the employees to stop taking direction from the other owner.
If you are the frozen-out shareholder or director, you have some important decisions to make. Here are four things that will impact how your case will develop if you’ve been frozen out of your company:
1. What type of business entity do you own?
You may not have paid much attention in the past on whether your company is a corporation, an LLC, or an unorganized partnership, but now is the time to figure that out and to pay close attention to it. The type of entity that you are a part owner of will have a dramatic impact on the type of claims that you’re going to bring and on the best strategy to pursue in litigation.
These and many other questions will influence your options. In the case of a corporation, Pennsylvania statutes provide for the proper process to follow in objecting to many corporate actions. Some actions may be governed by other rules of law, as well.
In regards to an LLC or a partnership, the rules are based more heavily on private documents between the parties, but are also governed by certain fundamental legal principals. In short, knowing what type of entity you own is an important piece to the overall puzzle.
2. What type of ownership interest do you have in the company?
More importantly, what is your ownership interest in the company? If the company is a corporation, are you a voting or non-voting shareholder? Do you have a contractual right to be on the board of directors under your corporation’s bylaws, or under some other agreement? If the company is an LLC, do you have an Operating Agreement? And is your Membership of the same class as the Member who froze you out?
What percentage owner are you? Do you own half? Less than half? If so, you are a “minority shareholder,” meaning that you own less than a controlling percentage of the company. This means the Court will have to apply certain doctrines to protect your rights if a “controlling shareholder” or controlling ownership group are acting oppressively. Of course, if you own a controlling percentage, your remedies may be even stronger if you were frozen out.
3. Do you want to return to your company? Or, do you want a payout?
An important decision that a frozen-out owner will often have to make is whether they want to return to the company as an owner, or whether they essentially want to be bought out of their interest in the company. This is a tough decision to make and may be very difficult in the bitter circumstances of an acrimonious dispute between shareholders or partners.
However, deciding whether you want to reclaim your rightful place in the company or simply accept money for the damages you’ve suffered will help to determine the course of action that you should take starting on day one.
4. What type of freeze-out occurred?
We referenced at the beginning of this article that there are many ways to be frozen out. Not all freeze-outs are made equal. If you are frozen out by a changing of the locks, you may need to approach the litigation with an injunction from the Court requiring that you be allowed to re-enter the premises, or you may need to take other legal and aggressive action immediately. If you’re the victim of a “soft” freeze-out, where other owners are undermining you and depriving you of the control you are legally entitled to, the approach may be different.
The actions of your co-owner or partners will dictate your strategy in some respects, but if you haven’t been completely frozen-out, that may also give you the opportunity to make important and strategic decisions to protect your rights.
Conclusion: Call the Cornerstone Law Firm to discuss your case
At Cornerstone Law Firm, we handle freeze-out disputes. We have experience in negotiating, litigating and avoiding disputes between partners and owners. We have represented minority owners frozen out of LLCs, partnerships and corporations, and have handled multi-million-dollar business disputes.
Call us today for a free, confidential consultation, and we can discuss how we can help you solve your problem.
What is Probate?
/in Estate Administration, Probate /by Cornerstone Law FirmWhen a loved one passes away, the details can be overwhelming. Those left behind are suddenly confronted with a myriad of strange vocabulary to learn and figure out what to do with. One common word that you’ll begin hearing is “Probate.” So, what is probate, and do you need an attorney to help you with it?
Probate is the process of filing the will of a deceased loved one with the court, gathering their assets, paying off their liabilities, filing taxes, and closing out their estate. Simply put, probate is the court process that oversees the administration of an estate.
The Purpose of Probate
The purpose of probate is to ensure that all of a deceased loved one’s debts are paid, and to make sure that their assets can be passed to their loved ones (“beneficiaries”) without any legal liability passing to their beneficiaries.
The Requirements of Probate
Probate requires that debts are paid in a certain order pursuant to a Pennsylvania statute, and limits the types of claims that can be brought against the person who has passed away. Probate also requires filing of tax returns to pay the Inheritance Tax for those who receive an inheritance from the person who passed. Usually, the estate pays this tax to avoid beneficiaries being saddled with the bill, although this depends on the Will.
Navigating the Probate Process
The Probate process can be confusing and, because it can be expensive, it is not always necessary to go through. A good Estate Administration Attorney will help you to see if there is any way to avoid the probate process altogether, as well as the fees and costs associated with it. However, in many cases, probate is required and is unavoidable.
If you know someone who has recently passed and you are trying to figure out how to administer their estate, call the Cornerstone Law Firm for a free consultation. We’ll be happy to sit down with you and discuss your options and to figure out the best way to administer your estate.
Default Judgment
/in Lawsuit /by Cornerstone Law FirmWhen you fail to respond to a lawsuit filed against you, the court will grant the other party whatever relief they were seeking in their Complaint. This is known as a “default judgment.” In this post, we’ll discuss default judgments, and what you can do if you’ve found yourself dealing with one.
How Defaults Occur
When you’ve been served with a lawsuit, you typically have about thirty days to respond to that lawsuit (although this time varies depending on whether you are in state or federal court). If you don’t respond during that time, judgment will be entered against you in the amount of money claimed in the Complaint.
So, for example, if the complaint asked for $100,000, and you declined to answer, the court will assume that you had no problem with a $100,000 judgment entered against you. Admittedly, this is unlikely with a number that high, but there are plenty of times that someone may not really care about a complaint against them, because they figure the judgment is too small to fight about. They would rather give up, pay the amount to the person that holds the judgment, and move on with life.
The more common reason for a default judgment, however, is that the Defendant never learned of the lawsuit. For example, in some cases, the lawsuit may not have been properly served. In a common example in Pennsylvania, the person may have been served with a “Writ of Summons” which merely told them they were being sued but did not tell the Defendant what they were being sued for.
Unfortunately, many people allow these to simply sit around for a long time. One day, the Plaintiff mails the Defendant a Complaint or, in some cases, doesn’t mail it and claims that they did, and a default judgment is entered. The default judgment acts just like any other judgment. Once entered, it has binding effect on you and can be used to execute against your possessions. It is a serious and important problem, and you should act quickly upon learning of the judgment in order to avoid forfeiting any more of your rights.
When the judgment is entered, it has binding effect on you and can be used to execute against your possessions. It is a serious problem, and you should act quickly upon learning of the judgment in order to avoid forfeiting any more of your rights.
When No Money is Claimed
Many Complaints never state a claim for a precise amount of damages, however. There is no rule requiring that a Plaintiff calculate their precise damages when they file a suit. Many times, damages are determined during the course of discovery and trial.
Accordingly, most Complaints are filed without a specific claim for the amount of damages at issue. In this case, the Court will award judgment on liability, and then will set a trial for damages. Discovery and other processes will ensue to aid the parties in determining exactly how much is claimed.
Conclusion: Don’t Sit on a Default Judgment
If a default judgment has been entered against you, don’t ignore it. You may be able to move to have the judgment re-opened. In other cases, you may be able to limit the amount of damages, even if the default is irreversible. What you should not do is wait.
Contact an attorney at Cornerstone Law Firm today to discuss your case.
What is a Concurring or Dissenting Opinion?
/in Appellate Attorneys /by Cornerstone Law FirmIt’s relatively frequent in the news that you hear about a “concurrence” or “dissent.” What does it mean when a Justice of the Supreme Court of the United States or a Judge of another Court issues a concurring or dissenting opinion?
To understand this, we have to look at a brief history of how higher court opinions came to be the way they are today in the United States.
Seriatim
In the early nineteenth century and before, the judges of higher courts (such as the Supreme Court) would issue their opinions “seriatim” (Latin for “separately”). This means that each judge would issue their own opinion about the case that had come before them, and it was up to the reader to figure out which opinion was the controlling, majority opinion to be followed in future cases.
Of course, sometimes this was difficult to do because judges about the same case may come to the same conclusion different ways or to slightly different conclusions. This was a confusing state of affairs, and it made it very difficult for lower courts to know which rule or which judge’s opinion they were supposed to follow.
When Chief Justice John Marshall joined the Supreme Court, he implemented a new policy whereby there was one Majority Opinion that was voted on or agreed to by the rest of the Justices who had voted in favor of the winning rule. Any other Justice was, of course, welcome to write their own opinion, either in support of the final judgment or expressing their displeasure with it. And thus, concurring and dissenting opinions were born.
What We Learn from Concurrences and Dissents
Today, concurrences and dissents carry no legal weight. They are typically not cited by lawyers in briefs arguing before any court, because they do not carry the force of law. They are however, persuasive in some cases, and especially so if written by a judge who has a good reputation among other judges and lawyers.
But primarily, concurrences and dissents tell us what the Justices think about an area of the law, and they often contain valuable clues as to what other cases they’re looking for, and what areas of law they wish to influence. Accordingly, these are heavily studied by appellate lawyers (that is, lawyers who handle appeals from a lower court judgment to a higher court), in determining what sorts of challenges in future cases might be appealing to one Judge or another.
This article has been part of our ongoing series about appellate law—the way in which lawyers and judges shape and influence the law by arguing before courts of appeals. If you have an appellate matter you wish to have reviewed, contact us today for a free consultation.
May 2019 Recap
/in Updates /by Cornerstone Law FirmLast month was a busy one for the Cornerstone Law Firm team. Attorney Crossett attended several Landlord-Tenant Hearings and helped evict tenants who were not paying rent or who had made dangerous advances against other residents of apartment complexes.
Attorney Ready helped to secure an Order for Possession of Property for a client that buys and sells real estate so that they could take possession of property that was being lived in by someone else. In addition, Attorneys Ready and Crossett handled several real estate agreements, and a real estate closing in our Blandon office.
Attorney Ready handled a jury trial for a client accused of Aggravated Assault with a Deadly Weapon, and received a verdict of Not Guilty on all counts. In addition, Attorney Ready negotiated favorable sentences and agreements for other clients.
In the middle of the month, the Cornerstone Law Firm team celebrated the Firm’s anniversary on May 21st. We continue to be grateful to Berks County residents for their business and support of our local work, and we’re honored to have the trust of clients all over the state and the country.
Our travels this month have taken us from Schuylkill, Lehigh, and Berks counties all the way out to Allegheny County this month, and has included appearances in a Maryland Court as well.
If you have need of legal services, we welcome your call to discuss your case.