It seems Dorkocrat Andrew Yang did not last long as a first-year transactional associate at Davis Polk's New York office before squandering all his preftige (Phillips Exeter, Brown, Columbia Law) in exchange for a series of ventures in the unseemly field of do-gooder tech startups.
The Post's puff piece has the deets.
Question! Given that he has now lost the crucial formerly-closeted-Asian-failed-blogger-amateur-photographer vote, does this fact hurt or improve his chances at the Democratic nomination? Would you feel differently if Yang wrote you a check for $1,000 right now?
A place to discuss the law and tangentially law-related things. Home of Glawker refugees and other degenerates who have been run out of multiple towns. A serious lack of rejoinder. We'll make fun of you if you ask for legal advice.
October 29, 2019
October 27, 2019
Does ABA Blind-Eye Chinese Organ Harvest?
Back in the news again is this recurrent topic of the Chinese government's allegedly involuntary extraction of organs from imprisoned religious and political dissidents. Interestingly, the American Bar Association's background page relating to its "Rule of Law Initiative" in China omits any mention of or concern for this issue. Rather, the ABA has devoted its efforts to such ends as increasing sensitivities to rights of LGBTQ persons, and in one incident (in April of 2016) a leaked ABA staff email suggested ABA had withdrawn a publication offer for a work that might upset the Chinese government.
After reading the linked article, I ran a few searches to see if I could learn what, if anything, the ABA's Rule of Law Initiative is actually doing for anyone in China. It turned out very few specifics are available. Apart from ABA's own general background discussion, there is very little to indicate it has been active to any meaningful degree. Certainly it is not among the organizations referenced in the linked article as gathering evidence of the crimes against humanity associated with the reported organ extraction activities. Could it be that the ABA is again concerned that it might upset the Chinese government by any improvident mention of these issues? For whatever reason, ABA and its Rule of Law Initiative seem to be missing in action in this instance.
https://www.msn.com/en-us/news/world/survivors-and-victims-on-shocking-state-sanctioned-organ-harvesting-in-china/ar-AAJp1Qn
After reading the linked article, I ran a few searches to see if I could learn what, if anything, the ABA's Rule of Law Initiative is actually doing for anyone in China. It turned out very few specifics are available. Apart from ABA's own general background discussion, there is very little to indicate it has been active to any meaningful degree. Certainly it is not among the organizations referenced in the linked article as gathering evidence of the crimes against humanity associated with the reported organ extraction activities. Could it be that the ABA is again concerned that it might upset the Chinese government by any improvident mention of these issues? For whatever reason, ABA and its Rule of Law Initiative seem to be missing in action in this instance.
https://www.msn.com/en-us/news/world/survivors-and-victims-on-shocking-state-sanctioned-organ-harvesting-in-china/ar-AAJp1Qn
October 26, 2019
"Nazi-Era Symbol" in Katie Hill Images?
Perhaps out of sensationalism, the Daily Mail suggests in its headline that the Iron Cross shown tattooed on Katie Hill's groin in one of her recently-leaked nude images is a "Nazi-era symbol." Far down into the article, the author admits that the symbol was also used by the Imperial German Army in the Great War of 1914-1918, and cannot be determined to be a "Nazi-era symbol" unless it is the variant with a superimposed swastika (this one was not). So, I doubt this goes anywhere politically. Of course, the sexual relationship with a staffer was technically improper, but it likely qualifies as LGBTQ, so Hill gets offsetting fad points with Democratic voters (Hill apparently denies allegations of another relationship with a male staffer). This will be one to watch, simply because it adds a bit of entertainment to an otherwise mortifyingly depressive election cycle.
https://www.dailymail.co.uk/news/article-7609835/Katie-Hill-seen-showing-Nazi-era-tattoo-smoking-BONG-NAKED.html
https://www.dailymail.co.uk/news/article-7609835/Katie-Hill-seen-showing-Nazi-era-tattoo-smoking-BONG-NAKED.html
October 24, 2019
McGowan Sues Lisa Bloom
Apparently Lisa Bloom's media razzle-dazzle with the apology for her nefarious behavior was not sufficient to satisfy Rose McGowan. Now, the abominable progeny of Gloria Allred will be able to experience the reality of the shakedown on the other foot. I will need to get out and buy some more popcorn to eat while this continues to unfold. I expect that the admissions extracted from Ms. Bloom in discovery will include some real treasures. She won't easily be belly dancing her way out of this one.
https://www.bizjournals.com/bizwomen/news/latest-news/2019/10/rose-mcgowan-sues-weinstein-attorney-lisa-bloom.html
https://www.bizjournals.com/bizwomen/news/latest-news/2019/10/rose-mcgowan-sues-weinstein-attorney-lisa-bloom.html
October 23, 2019
Retailer Caves in Blackface Pumpkin Outrage
I gather the "blackface" pumpkins were part of the "Beyond" inventory, as even Lee Rawles wouldn't put these in her Bed or her Bath. Although it is not easy to see how various "fashionable" retailers keep putting their foot in the "blackface" trap, I suppose the absence of cartoonishly huge, red lips on these pumpkins prevented the BB&B buyers from realizing how they might be perceived.
https://www.msn.com/en-us/lifestyle/lifestyle-buzz/bed-bath-and-beyond-pulls-blackface-pumpkins-from-the-shelves/ar-AAJfT2v?li=BBnbfcL
https://www.msn.com/en-us/lifestyle/lifestyle-buzz/bed-bath-and-beyond-pulls-blackface-pumpkins-from-the-shelves/ar-AAJfT2v?li=BBnbfcL
The Dumpster Fire that is WeWork keeps on burning
Apparently they haven’t fired people because they can’t pay severance. But at least Uber Bro Neuman gets $200M in “consulting fees” on top of the $1.7 in payments for equity, by SoftBank. Good times.
I would pay good money to read the company’s internal “slack” page in full.
https://www.bloomberg.com/amp/news/articles/2019-10-22/wework-staff-facing-job-cuts-express-outrage-at-founder-payout
I would pay good money to read the company’s internal “slack” page in full.
https://www.bloomberg.com/amp/news/articles/2019-10-22/wework-staff-facing-job-cuts-express-outrage-at-founder-payout
October 22, 2019
So You Want to Work for GLAWKER?
So, it appears that GLAWKER is hiring a part time copy editor. They're looking for someone to work 3 hours per day at $20 per hour. Here are the job requirements:
"Must be attentive to detail and able to spot errors quickly." So, in other words, KKRR, Staci, JoePa, Renwei and Steven/Shannon need not apply.
"Some understanding of the law is preferred, but not required." No fucking shit. If GLAWCKER required "some understanding of the law," the only columnist there would be Juggalo Law.
So who is sending their application first?
"Must be attentive to detail and able to spot errors quickly." So, in other words, KKRR, Staci, JoePa, Renwei and Steven/Shannon need not apply.
"Some understanding of the law is preferred, but not required." No fucking shit. If GLAWCKER required "some understanding of the law," the only columnist there would be Juggalo Law.
So who is sending their application first?
October 18, 2019
Russians Under Every Bed
This time trying to rig the Democratic primaries, says local woman.
https://www.cnn.com/2019/10/18/politics/hillary-clinton-tulsi-gabbard/index.html
https://www.cnn.com/2019/10/18/politics/hillary-clinton-tulsi-gabbard/index.html
October 15, 2019
State of the Legal Profession
Hi guys. I don't have much to say, other than I'm wondering, from an anecdotal perspective, how is the legal market doing right now? And for those doing patent work, how busy is your patent practice, including IPR and prosecution dockets? I'm considering a switch, but don't want to jump at a bad time, since I have plenty of work right now, and enough seniority to weather a round or two of layoffs if things take a turn for the worse. I feel like the economy in general is kind of on a plateau right now.
TL/DR - in your current experience, how is the job market for attorneys right now, and how does it look for the next 6 months to a year? Thanks!
TL/DR - in your current experience, how is the job market for attorneys right now, and how does it look for the next 6 months to a year? Thanks!
October 10, 2019
If at ... second you don't succeed, fail again a third time - or - Shannon gonna Shannon
Stevennon Achungmalbe is back again with another article discussing the differences between an employee and independent contractor. Astute readers may remember that Stevennon botched this same topic last week (affiliate link). Well, s/he's back again with more head scratchers in a meandering set of words having something to do with the tax treatment of independent contractors versus employees. Here are some of the highlights:
Next, what the hell does an athlete's side venture have to do with his or her classification vis-a-vis the team for which he or she plays? There is no reason Lawrence Taylor can't be employed by the NY Giants as a football player and be self-employed with respect to the eight shady car wash stations he owns (note: I have no idea whether LT owned car washes, it was just a common [poor] investment for football players at the time). The two are entirely separate businesses.
Sticking with LT, he signed a contract extension in 1990 which paid him about $1.6 million per year in taxable wages. The team pays for his equipment, uniforms, trainers, and travel (at least 8 away games per year). Not accounting for the cap on social security taxable wages, being treated as an independent contractor and therefore required to pay the full 15% taxes on his wages as opposed to 7.5% would cost him $120,000.00 per year. What write-offs would he have as a football player for the NY Giants? If he pays for his own travel, equipment, uniforms, training staff, and other amenities/services/perks enjoyed as a player, I'd guess that would have cost around $75k in 1990. Even rounding up to $100k and treating those costs as business expenses, all that would get LT is a reduction of $100k in taxable income. Assuming a tax rate of 33%, LT's just thrown away $220k to make an extra $33,333? Sweet deal.
Finally, an employee injured in the line of work is entitled to workers comp benefits, which are not "disability benefits." That aside, Achungmalbe must not watch a lot of sports. In all three leagues he mentions, the players are unionized and compensation for injuries is covered by the respective CBA. In the NBA and MLB, most all contracts are fully-guaranteed, meaning an injured player gets paid whether he plays or sits at home recovering from surgery. NFL contracts are a bit different. Some of the stars have contracts with a guaranteed minimum but, for any other player, he can only be cut from the team while injured if he reaches an injury settlement with the team. If there's no injury settlement, he continues to receive his base pay.
Next up, we return to Stevennon's famous cab owner buddy s/he met at a mixer:
Introducing Uber into the equation breaks it. The driver still has an independent contractor relationship with the passenger. That will not change. The current controversy/battle is whether, by using Uber to facilitate business and handle payments, the drover becomes an employee of Uber. I just don't get what Stevennon is getting at here - it's not an apples-to-apples comparison. Please. Stevennon, just stop.
The blur has created some unexpected results. For example, you might be surprised to learn that professional athletes are employees of either their team or their league (MLB, NFL, NBA, etc.). You would think that with their endorsement contracts, and possible side ventures, they would want to be independent contractors and take advantage of the more generous tax write-offs. On the other hand, if they were to get injured during a game, they would prefer that their employer foot the medical bills and qualify for disability benefits.Nope. Not surprised at all. Professional athletes are some of the most obvious employees out there. Under any test/definition for determining an employee-employer relationship, the first factor to address is the degree to which the employer controls the employee's work. Outside of the military, I can't think of a more controlled population than pro athletes. They are required to show up at X time on X date for practice, required to wear certain uniforms, required to travel across the continent/hemisphere for games, required to execute plays as directed by coaches/managers, and forbidden from engaging in certain enumerated activities as well as playing for a competitor. This is not even close. If you're surprised by the fact that athletes are employees and not ICs, you need to spend all your MCLE hours on employment law.
Next, what the hell does an athlete's side venture have to do with his or her classification vis-a-vis the team for which he or she plays? There is no reason Lawrence Taylor can't be employed by the NY Giants as a football player and be self-employed with respect to the eight shady car wash stations he owns (note: I have no idea whether LT owned car washes, it was just a common [poor] investment for football players at the time). The two are entirely separate businesses.
Sticking with LT, he signed a contract extension in 1990 which paid him about $1.6 million per year in taxable wages. The team pays for his equipment, uniforms, trainers, and travel (at least 8 away games per year). Not accounting for the cap on social security taxable wages, being treated as an independent contractor and therefore required to pay the full 15% taxes on his wages as opposed to 7.5% would cost him $120,000.00 per year. What write-offs would he have as a football player for the NY Giants? If he pays for his own travel, equipment, uniforms, training staff, and other amenities/services/perks enjoyed as a player, I'd guess that would have cost around $75k in 1990. Even rounding up to $100k and treating those costs as business expenses, all that would get LT is a reduction of $100k in taxable income. Assuming a tax rate of 33%, LT's just thrown away $220k to make an extra $33,333? Sweet deal.
Finally, an employee injured in the line of work is entitled to workers comp benefits, which are not "disability benefits." That aside, Achungmalbe must not watch a lot of sports. In all three leagues he mentions, the players are unionized and compensation for injuries is covered by the respective CBA. In the NBA and MLB, most all contracts are fully-guaranteed, meaning an injured player gets paid whether he plays or sits at home recovering from surgery. NFL contracts are a bit different. Some of the stars have contracts with a guaranteed minimum but, for any other player, he can only be cut from the team while injured if he reaches an injury settlement with the team. If there's no injury settlement, he continues to receive his base pay.
Next up, we return to Stevennon's famous cab owner buddy s/he met at a mixer:
As I mentioned in my previous column, I use a local transportation service if I need to get somewhere and I am too lazy to drive. The owner networked and advertised for customers. Or he may just drive around an airport or a bar in order to pick up a customer who needed a ride home. In this case, most would agree that he is an independent contractor since he sets his schedule and finds his own customers. But services like Uber provide the customers to the driver so long as he turned on the app and reported for duty. Would that automatically make him an employee? He might be an employee under the ABC test, but not under the common law test, according to an opinion from the general counsel of the National Labor Relations Board.This is just a really weird line of thinking. It is technically correct that the driver is an independent contractor (with respect to passengers), but that's not what Stevennon seems to be getting at judging by the introduction of Uber later in the paragraph. The comparison makes no sense. The taxi driver owns his own vehicle and is out hustling for business on his own. He gets his own business and collects the entire payment. There is nobody "above" him telling him where to go or paying him. There are only two parties to the transaction - the passenger and the driver. Technically, the driver is an independent contractor of the passenger. Anyone who thinks otherwise is smoking crack.
Introducing Uber into the equation breaks it. The driver still has an independent contractor relationship with the passenger. That will not change. The current controversy/battle is whether, by using Uber to facilitate business and handle payments, the drover becomes an employee of Uber. I just don't get what Stevennon is getting at here - it's not an apples-to-apples comparison. Please. Stevennon, just stop.
October 9, 2019
Warren: 'Did I stutter?'
Questions about Elizabeth Warren's background have arisen once again, this time having nothing to do with her ancestry or of where in Oklahoma one can find "traditional Cherokee crab meat omelettes."
Instead, new evidence gives lie to her story about how she got canned in her 20s from her job as a public school speech therapist for being preggers.
https://freebeacon.com/politics/county-records-contradict-warrens-claim-she-was-fired-over-pregnancy
Warren, of course, is sticking by her story, or at least 1,064th of it.
October 8, 2019
Article By Elie Praising Kavanaugh In 3... 2... 1...
T;dr - while a convicted (in the court of public opinion) rapist, Kavanaugh apparently not into racism.
https://qz.com/1723582/kavanaugh-calls-out-racism-on-first-day-of-new-supreme-court-term/amp/
https://qz.com/1723582/kavanaugh-calls-out-racism-on-first-day-of-new-supreme-court-term/amp/
Judge Who Queeged Out on Juror Backpedals Furiously
First, this judge looked unhinged, for slapping an errant juror with a range of punishments including ten days in the slammer. Then, he looked like Old Yellow-Stain for his effort to crawdad out of the situation, once he was pilloried on the news and in social media. Yes, he has followed in the footsteps of the Hon. Brave Sir Robin (Run away!! Run away!!). What an utter judicial freakshow.
https://www.msn.com/en-us/news/crime/the-judge-who-sentenced-a-man-to-10-days-in-jail-for-oversleeping-jury-duty-clears-his-record/ar-AAIqU5X
https://www.msn.com/en-us/news/crime/the-judge-who-sentenced-a-man-to-10-days-in-jail-for-oversleeping-jury-duty-clears-his-record/ar-AAIqU5X
October 7, 2019
“New Yorkers” To Blame for Chicago’s Taxi Problems
NY Times finds that “New Yorkers” (of a certain extraction) are to blame for Chicago’s woes when it comes to the taxi industry. Previous system when one Chicago “family” controlled the trade was better, says local man.
https://www.nytimes.com/2019/10/04/nyregion/taxi-medallions-chicago.html
https://www.nytimes.com/2019/10/04/nyregion/taxi-medallions-chicago.html
October 6, 2019
A Case for Reparations?
Timothy Meaher allegedly financed the last slave ship that brought captive slaves to America. He is said to have come out of the Civil War with considerable wealth. There is no indication whether that was linked to the slave ship. Some of Timothy Meaher's descendants are wealthy, and the identified descendants of the captive slaves are mostly not.
Of course, Meaher's descendants did not do anything to the captive slaves. Our ordinary principles of law do not support holding them responsible for something an ancestor did, simply because they have some money. I would say that if this is a case for reparations, it should be managed among the people involved. Dig up Meaher and all of the captive slaves whose burial sites are known, then split up any grave goods buried with Meaher (or, if none, simply Meaher's remains) and reinter those divided reparations with the remains of the captive slaves. Zamma, zamma, balance is restored to the universe.
https://www.msn.com/en-us/news/us/americas-last-slave-ship-could-offer-a-case-for-reparations/ar-AAIjJPC
Of course, Meaher's descendants did not do anything to the captive slaves. Our ordinary principles of law do not support holding them responsible for something an ancestor did, simply because they have some money. I would say that if this is a case for reparations, it should be managed among the people involved. Dig up Meaher and all of the captive slaves whose burial sites are known, then split up any grave goods buried with Meaher (or, if none, simply Meaher's remains) and reinter those divided reparations with the remains of the captive slaves. Zamma, zamma, balance is restored to the universe.
https://www.msn.com/en-us/news/us/americas-last-slave-ship-could-offer-a-case-for-reparations/ar-AAIjJPC
October 4, 2019
Dan Markel Murder Trial Open Thread
Florida law professor Dan Markel was murdered in his driveway a little over five years ago. The trial has finally begun. I assume ATL is "covering" it, but I don't go there since nein comments.
Was it a murder-for-hire over a child custody dispute? Was Wendi involved? Any surprises? Theories? Disqus!
Updated with details since not everyone is as old as me.
From Tallahassee Democrat:
Was it a murder-for-hire over a child custody dispute? Was Wendi involved? Any surprises? Theories? Disqus!
Updated with details since not everyone is as old as me.
From Tallahassee Democrat:
The last conversation Dan Markel had was about his two boys.
Five years ago today, the Florida State law professor — at 41, already a renown legal scholar — was on his cellphone with a friend and teacher at the School of Arts and Science talking about where the preschoolers should start kindergarten.
Where the boys would go to school was yet another point of contention between Markel and his ex-wife Wendi Adelson, also a lawyer and FSU professor. Even after they were divorced, their acrimony continued to play out in vicious legal battles over the boys' parenting.
That Friday morning, at about 11 a.m., Markel was returning to his single-story brick home on Trescott Drive in Betton Hills. He'd started the day a little before 9 a.m., dropping Ben and Lincoln off at Creative Preschool on Tharpe Street. He then hit Premier Fitness in Market Square, where he worked out for about 90 minutes.
He drove home south down Thomasville Road, and was still talking on the phone when he pulled his black Honda Accord into the garage. He remained behind the wheel for a few minutes continuing the conversation about Wendi trying to enroll the boys at the school without his knowledge.
“Hold on a second," Markel told his friend. "There is someone in my driveway that is unfamiliar to me."
Those were his last words.
On the other end of the phone, the next thing the friend heard was a loud grunt and muffled voices, followed by labored breathing. He asked if Markel was OK, but got no reply.
When emergency responders arrived at 2116 Trescott Drive — 19 minutes after the initial 911 call — Markel was slumped over the steering wheel struggling for breath. He’d been shot twice in the face at point blank range.
He was rushed to the hospital, but there was little to be done. He died at Tallahassee Memorial HealthCare early the next day.
Meanwhile, the Tallahassee Police Department began what would be a years-long effort to find out who killed Markel and why. ...
"Dan Markel was a light in the world," his parents Ruth and Phil Markel said, in a statement from their attorney Orin Snyder.
"Five years ago, Dan was murdered in cold blood outside his home — only hours after saying goodbye to his two young boys for what would be the last time. Five years later, his friends and family are still waiting for all of his killers to be brought to justice." ...
In September, after years of delays, Sigfredo Garcia and Katherine Magbanua will go on trial for Markel’s murder. Both were arrested in 2016, after a nearly two-year investigation, during which police dogged dozens of leads and pleaded with the public for help.
Much of the case against the couple, who have children together, will come from Luis Rivera, a co-conspirator, who made a deal with prosecutors to testify against the others in exchange for a lighter sentence.
But Markel’s parents, prosecutors and police contend the trio did not act alone. They say his ex-wife’s family ordered his killing so their daughter would be free to move to South Florida with the boys – something she greatly desired and Markel forbade. ...
Magbanua’s attorneys Chris DeCoste and Tara Kawass, who have been in the midst of dozens of witness depositions in preparation for trial, took a moment to mark the 5-year milestone Wednesday.
“On this anniversary instead of again stressing Katie’s innocence, we'd rather address the community that lost a son," they said in a statement. "Through our extensive investigation we’ve learned many things including something many of you already know. Dan Markel was a great man, a brilliant scholar and a devoted father. Current legal battles aside his murder is beyond tragic.” ...
In a statement through her lawyer, [Wendi Adleson] said: “Our boys and I continue to mourn Danny’s loss for each day of the five long years since he was taken from us.”
Markel murder suspects from TaxProfBlog:
October 3, 2019
Shannon Chung - Still Struggling With Wage and Hour Laws (Bigly)
Not all that long ago, an AtL columnist going by the pseudonym Shannon Achimalbe write an article about the effect of a proposed increase to the minimum salary necessary to qualify for exempt status under Federal wage and hour laws on crappy entry-level lawyer jobs. Those of us who've had the misfortune of litigating these issues quickly noted that the proposed increases did not apply to the "professional" exemption from FLSA, which is why lawyers don't get overtime. Rather than delete the article and admit she fucked up, the author formerly known as Shannon just doubled down and added an "Update" to the front of the article reading:
In the following thirty months, Shannon's come out of the closet as Steven Chung, a solo tax attorney operating in southeast Los Angeles County, but hasn't taken any time to brush up on overtime laws, as painfully evidenced by his newest work over at AtL. Let's be clear, I hate overtime laws. They're needlessly complicated and turn on very malleable standards that even those with the best intentions can easily mess up. I avoid wage and hour work as much as I can. I don't expect a tax attorney to know a lot about wage and hour laws - but I do expect someone who doesn't know jack squat about overtime laws to refrain from writing about them.
In his latest work, entitled In the Gig Economy, Who Is An Employee And Who Is An independent Contractor?, Mr. Chung dives back into a topic he's already publicly bungled and, to nobody's surprise, bungles it up again.
To the extent it has a premise or point, the article's aim is to discuss classification of workers as either employees or independent contractors and how the uncertainty has been amplified by the "gig economy" (basically Uber and Lyft drivers), leading to new legislation in California (which is likely to be struck down as an equal protection violation, but that's another story). In discussing the difference between an independent contractor and an employee, Chung ... er ... just read it for yourself:
Chung is focusing on California law in his article. I'll do the same. The assertion that an independent contractor doesn't have protection against harassment (in freaking CALIFORNIA) should just seem nonsensical without any research. Had Chung spent five minutes researching the issue, he would have stumbled upon California's Fair Employment and Housing Act (our version of Title VII) and it's broad protection against harassment:
So, no, Steven, independent contractors have a clear protection from harassment. And while it is true that the Fair Employment and Housing Act doesn't protect an independent contractor from discrimination in the decision to enter into the contract in the first instance, independent contractors do have that protection under California's Unruh Civil Rights Act:
(Cal. Civil Code section 51.5(a)) (emphasis added). The referenced characteristics are exactly what you'd expect: sex, race, color, religion, ancestry, national origin, disability, and so on.
Next, lawyers, doctors, and other professionals don't get paid overtime. That's because they're considered exempt under overtime laws, not because they're considered independent contractors. There's a HUGE difference. Most non-equity attorneys in law firms are employees, same as the receptionist. The firm will pay certain taxes, make appropriate withholdings, etc. The difference is that the receptionist is entitled to two paid ten-minute rest breaks and one unpaid thirty-minute lunch break per 8 hour shift and is entitled to overtime pay and the lawyer is not. This is because lawyers are, by law (well, by administrative regulation if you want to be specific) "exempt" employees, meaning that overtime, meal, and rest break laws don't apply to them. Otherwise, they are subject to all the same benefits and protections as the receptionist. They are NOT independent contractors.
The benefit of hiring an independent contractor is that you agree on the service to be provided, a few other specifics, and the price for that service. That's it. No payroll taxes, no withholdings, no obligation to indemnify the independent contractor against losses incurred in the course of his or her job. Try telling an associate you're not going to reimburse him for the ex parte filing fee he just paid out of pocket for the firm's client and see how well that works. (Hint: you'll get sued, lose, and have to pay attorney's fees).
If Chung's actually given any real world clients advice along these lines, it would be a good idea to put his malpractice carrier on notice now.
Please note that this post proceeds on the assumption that lawyers would be included in the new overtime rules — which knowledgeable readers informed us, after this post’s original publication, is not the case under the current proposed regulations. So please read the post with this in mind; we have not revised it to reflect this major change, except for the update at the end from the author.You can revisit the fiasco here, if you're into that type of thing.
In the following thirty months, Shannon's come out of the closet as Steven Chung, a solo tax attorney operating in southeast Los Angeles County, but hasn't taken any time to brush up on overtime laws, as painfully evidenced by his newest work over at AtL. Let's be clear, I hate overtime laws. They're needlessly complicated and turn on very malleable standards that even those with the best intentions can easily mess up. I avoid wage and hour work as much as I can. I don't expect a tax attorney to know a lot about wage and hour laws - but I do expect someone who doesn't know jack squat about overtime laws to refrain from writing about them.
In his latest work, entitled In the Gig Economy, Who Is An Employee And Who Is An independent Contractor?, Mr. Chung dives back into a topic he's already publicly bungled and, to nobody's surprise, bungles it up again.
To the extent it has a premise or point, the article's aim is to discuss classification of workers as either employees or independent contractors and how the uncertainty has been amplified by the "gig economy" (basically Uber and Lyft drivers), leading to new legislation in California (which is likely to be struck down as an equal protection violation, but that's another story). In discussing the difference between an independent contractor and an employee, Chung ... er ... just read it for yourself:
From the employer’s perspective, there are many advantages to treating workers like independent contractors as opposed to employees. Independent contractors can be paid with one simple payment. Employees must have taxes withheld and quarterly employment tax returns must be filed by the employer. Employers must also pay employment taxes for every employee they hire — including one half of their social security and Medicare taxes along with state unemployment taxes. Independent contractors are not subject to labor laws that regulate things like indemnity, expense reimbursement, mandatory break times, overtime, and sick pay. And independent contractors generally do not have legal remedies for discrimination and harassment.***
(Emphasis added)So how does a person qualify for independent contractor treatment? Most states follow the common law test with some variations. The common law test looks at many factors including the level of control the employer has over the person, whether the employer provides tools, and whether the person can work for other businesses. Many states allow certain professions such as lawyers, doctors, accountants, and architects to be automatically treated like independent contractors.
Chung is focusing on California law in his article. I'll do the same. The assertion that an independent contractor doesn't have protection against harassment (in freaking CALIFORNIA) should just seem nonsensical without any research. Had Chung spent five minutes researching the issue, he would have stumbled upon California's Fair Employment and Housing Act (our version of Title VII) and it's broad protection against harassment:
It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:....For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract....(Cal. Gov't. Code section 12940(j)(1)) (emphasis added).
So, no, Steven, independent contractors have a clear protection from harassment. And while it is true that the Fair Employment and Housing Act doesn't protect an independent contractor from discrimination in the decision to enter into the contract in the first instance, independent contractors do have that protection under California's Unruh Civil Rights Act:
No business establishment of any kind whatsoever shall discriminate against, boycott or blacklist, or refuse to buy from, contract with, sell to, or trade with any person in this state on account of any characteristic listed or defined in subdivision (b) or (e) of Section 51 ....
(Cal. Civil Code section 51.5(a)) (emphasis added). The referenced characteristics are exactly what you'd expect: sex, race, color, religion, ancestry, national origin, disability, and so on.
Next, lawyers, doctors, and other professionals don't get paid overtime. That's because they're considered exempt under overtime laws, not because they're considered independent contractors. There's a HUGE difference. Most non-equity attorneys in law firms are employees, same as the receptionist. The firm will pay certain taxes, make appropriate withholdings, etc. The difference is that the receptionist is entitled to two paid ten-minute rest breaks and one unpaid thirty-minute lunch break per 8 hour shift and is entitled to overtime pay and the lawyer is not. This is because lawyers are, by law (well, by administrative regulation if you want to be specific) "exempt" employees, meaning that overtime, meal, and rest break laws don't apply to them. Otherwise, they are subject to all the same benefits and protections as the receptionist. They are NOT independent contractors.
The benefit of hiring an independent contractor is that you agree on the service to be provided, a few other specifics, and the price for that service. That's it. No payroll taxes, no withholdings, no obligation to indemnify the independent contractor against losses incurred in the course of his or her job. Try telling an associate you're not going to reimburse him for the ex parte filing fee he just paid out of pocket for the firm's client and see how well that works. (Hint: you'll get sued, lose, and have to pay attorney's fees).
If Chung's actually given any real world clients advice along these lines, it would be a good idea to put his malpractice carrier on notice now.
October 1, 2019
Murder Verdict in Amber Guyger Case
After some difficulty with the instructions concerning manslaughter and "reasonable mistake" (which the nervous court declined to clarify), the jury came in with a verdict of guilty on the charge of murder. This suggests in context that they found the defendant's mistake (or collective mistakes) in the death of Botham Jean to be "unreasonable," and so rejected the self-defense thesis in its entirety. At that point, the jurors probably saw no other basis for the lesser-included charge of manslaughter, and came back with the murder verdict accordingly.
Assuming the instructions given by the court were the formula instructions for the offenses charged and the claim of self-defense, the case seems unlikely to be reversed on appeal, notwithstanding the interim notes from the jury showing some confusion with the elements. The jury did its job, and tied the case out on the facts as instructed by the court.
Black racist Ben Crump, never missing an opportunity to exploit a tragedy for another two minutes of fame, promptly did everything he could to make the case and the jury's verdict about race. Crump is a reflection of what Elie Mystal might have become, had he only been able to come to grips with that "licensing" thing.
https://www.msn.com/en-us/news/us/former-officer-convicted-of-murder-in-wrong-apartment-killing-of-innocent-man/ar-AAI7yOq
Assuming the instructions given by the court were the formula instructions for the offenses charged and the claim of self-defense, the case seems unlikely to be reversed on appeal, notwithstanding the interim notes from the jury showing some confusion with the elements. The jury did its job, and tied the case out on the facts as instructed by the court.
Black racist Ben Crump, never missing an opportunity to exploit a tragedy for another two minutes of fame, promptly did everything he could to make the case and the jury's verdict about race. Crump is a reflection of what Elie Mystal might have become, had he only been able to come to grips with that "licensing" thing.
https://www.msn.com/en-us/news/us/former-officer-convicted-of-murder-in-wrong-apartment-killing-of-innocent-man/ar-AAI7yOq
US Still Racyist Judge Holds
Harvard preference for the Elie Mystals of the worlds (the well to do but part black) as opposed to socioeconomic preference is still best way to go.
https://www.law.com/nationallawjournal/2019/10/01/we-are-not-there-yet-court-upholds-harvards-race-based-admissions/?kw=%27We%20Are%20Not%20There%20Yet%27:%20Court%20Upholds%20Harvard%27s%20Race-Based%20Admissions&utm_source=email&utm_medium=enl&utm_campaign=breakingnews&utm_content=20191001&utm_term=nlj
https://www.law.com/nationallawjournal/2019/10/01/we-are-not-there-yet-court-upholds-harvards-race-based-admissions/?kw=%27We%20Are%20Not%20There%20Yet%27:%20Court%20Upholds%20Harvard%27s%20Race-Based%20Admissions&utm_source=email&utm_medium=enl&utm_campaign=breakingnews&utm_content=20191001&utm_term=nlj
Freedom of Contract, and Very Expensive Beer
Naturally enough, when I first heard of this $724.00 charge for two beers dispensed during a Dolphins game, I assumed it was simply a large law firm applying its standard, client "mark-up." But no. It turns out that in this instance, it was a low-born (though enterprising) person of color, leveraging (as we might say) fortuitous circumstances to obtain top-dollar for the concessionary items that he offered.
Putting aside all the untoward things that were clearly taking place here, such as people actually attending this event, in broad daylight, what has become of the notion of "freedom of contract?" If a humble purveyor of rather ordinary beers finds himself in circumstances wherein a desperate customer is willing to pay $724.00 for two beers, how can the consummation of the sale at such a price be criminal?
After all, we have a willing seller with a commodity, and a willing buyer thereof, not under compulsion (apart from the perils of sensible sobriety while present at a Dolphins game). Isn't this the quintessential demonstration that the two beers, in these isolated circumstances, had a "fair market value" of $724.00?
https://www.msn.com/en-us/sports/nfl/stadium-vendor-arrested-for-charging-fan-over-dollar700-for-2-beers-at-dolphins-game/ar-AAI5nO1?li=BBnbfcL
Putting aside all the untoward things that were clearly taking place here, such as people actually attending this event, in broad daylight, what has become of the notion of "freedom of contract?" If a humble purveyor of rather ordinary beers finds himself in circumstances wherein a desperate customer is willing to pay $724.00 for two beers, how can the consummation of the sale at such a price be criminal?
After all, we have a willing seller with a commodity, and a willing buyer thereof, not under compulsion (apart from the perils of sensible sobriety while present at a Dolphins game). Isn't this the quintessential demonstration that the two beers, in these isolated circumstances, had a "fair market value" of $724.00?
https://www.msn.com/en-us/sports/nfl/stadium-vendor-arrested-for-charging-fan-over-dollar700-for-2-beers-at-dolphins-game/ar-AAI5nO1?li=BBnbfcL
October 1st Never Have I Ever
Just curious because I saw this in some MSN or similar "poll" recently. Of course everyone who ever paid the slightest attention to PE knows that marching around in some sweaty "protest" is not peer. For the love of God, this is why we put out the largess to have Senators and Representatives take our calls and answer our emails and texts and do our errands for us.
Even so, in recognition of the errant days of youth, I must admit that on a few occasions, back in the day, I allowed myself to become personally involved in plebeian "protests." Accordingly, this particular entry really should be properly categorized as "seldom have I ever."
So, for my colleagues willing to participate, it comes down to this: have you ever marched in a "protest," and if so, what was the motivating "cause" that could not be served by simply "working through the system?"
Even so, in recognition of the errant days of youth, I must admit that on a few occasions, back in the day, I allowed myself to become personally involved in plebeian "protests." Accordingly, this particular entry really should be properly categorized as "seldom have I ever."
So, for my colleagues willing to participate, it comes down to this: have you ever marched in a "protest," and if so, what was the motivating "cause" that could not be served by simply "working through the system?"
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