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Can a worker dictate whether they are treated as an “employee” or “independent contractor”?

No. This is not a choice that is made by either the worker or the employer.

Whether a worker is considered an “employee” or an “independent contractor” (often and imprecisely referred to as a “1099 employee”) is dictated by numerous factors including the circumstances of the work. You can find some of the factors that determine employee or independent contractor status in this post and you can find guidance on avoiding what I call the “independent contractor trap” here.

This question has come up in my law practice when I hear that a person has chosen to be 1099’d rather then w-2’d, as if the person was making making an ordering decision at McDonald’s and choosing the #3 Extra Value Meal instead of the #4 Extra Value Meal. Like with many things in the law, it isn’t that easy, even for people who spend a lot of time working with the issue.

What is an independent contractor under Oklahoma law?

Unfortunately, there is no easy answer to this question. It is based on a range of factors and determined by different sources depending on what you are doing and who is raising the question. For example, the Internal Revenue Service has a list of factors it considers which you can find here. If you are in Oklahoma, it is important to know what Oklahoma authorities say matters.

According to the Oklahoma Worker’s Compensation Commission, these are the relevant factors to consider in determining whether a worker is an independent contractor:

The nature of the contract shows that the worker is independent from the contractor. For example, the contract may contain an agreement that the contracting party is an independent contractor.

The degree of control exercised by the principal (employer) over the work. The greater the degree of control exercised by the principal, the greater the likelihood is that the worker is an employee, rather than an independent contractor.

Whether the worker is engaged in a distinct occupation or business for others. For example, the worker is a painter who paints houses for multiple employers.

The kind of occupation with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;

Whether the occupation requires special skills, license, education, or training; which tends to indicate that the worker is a contractor.

The worker supplies all or most of the materials that he or she needs to perform the job. If this is the case, it tends to indicate that the worker is an independent contractor.

The length of the job, i.e., whether the job is a one-time job or a job that will be performed on a regular basis.

The worker is paid as a separate contractor, e.g., an invoice is provided to the worker for his/her services; the worker is paid by the job; the worker files a federal income tax return for his/her business; the worker is provided with an IRS Form 1099 from the principal.

Whether or not the work is a part of the regular business of the employer;

Whether or not the parties believe they are creating the relationship of master and servant;

The right of either party to terminate the relationship without liability.

What does the IRS consider in determining whether a worker is an employee or an independent contractor?

The IRS occupies a place like EF Hutton used to: When it speaks, people listen.

So it is nice to know what the IRS cares about when considering whether a worker is an independent contractor or an employee. The IRS cares a lot about the degree of control a business has over the work in determining the independent contractor vs. employee question. Consider the following from the IRS website:

In determining whether the person providing service is an employee or an independent contractor, all information that provides evidence of the degree of control and independence must be considered.

The Common Law Rules

Common law generally means there is no statute or formal rule that sets it out, it is based on the decisions of the courts. The IRS says “Facts that provide evidence of the degree of control and independence fall into three categories:

Behavioral: Does the company control or have the right to control what the worker does and how the worker does his or her job?
Financial: Are the business aspects of the worker’s job controlled by the payer? (these include things like how worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc.)
Type of Relationship: Are there written contracts or employee type benefits (i.e. pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a key aspect of the business?

The IRS says this about what businesses should consider in making the independent contractor versus employee distinction:

Businesses must weigh all these factors when determining whether a worker is an employee or independent contractor. Some factors may indicate that the worker is an employee, while other factors indicate that the worker is an independent contractor. There is no “magic” or set number of factors that “makes” the worker an employee or an independent contractor, and no one factor stands alone in making this determination. Also, factors which are relevant in one situation may not be relevant in another.

The keys are to look at the entire relationship, consider the degree or extent of the right to direct and control, and finally, to document each of the factors used in coming up with the determination.

The IRS provides additional guidance here. If you are an Oklahoma employer or worker, this material is worth a look.

What is a membership interest in an Oklahoma limited liability company?

It almost sounds like the type of thing you would get when you join a health club, right? Not so fast.

There are three components to consider to understand the Oklahoma limited liability company.

Members vs. Stockholders

An Oklahoma corporation’s owners are known as “stockholders” or “shareholders”. A membership interest is the rough equivalent to stock in a corporation. The owners of an Oklahoma limited liability company are known as “members.”

Membership Units

Technically, the measure of membership interest in a limited liability company is the “unit.” A member for example might purchase 10 units in the company while an Oklahoma stockholder might purchase 10 shares of stock in a corporation.

What you get when you purchase a membership interest

Why would I want to plan my Oklahoma Estate? HINT: It’s not only for you . . .

Is there any good reason for you to think about planning what will happen after you pass away?

Last week I wrote generally about the benefits of doing estate planning to replace the cookie-cutter plan the State of Oklahoma has for all its citizens. This week my focus is on one aspect of the estate planning process: the appointment of guardians for minor children.

When a guardian is necessary

If both parents pass away at the same time or a single parent passes away, Oklahoma law requires that a guardian be appointed. A Judge is going to make this appointment and the process, depending upon the material with which the Judge has to work, can be anywhere from smooth and relatively quick to painful and protracted. There are two sources to which the Judge can look. One is Oklahoma law that provides an order of relatives who might be entitled to appointment; the other, if it exists, the written nomination by the deceased parents of the person they want to serve as the child’s guardian.

How a guardian is appointed

If the deceased parent has nominated a competent individual, this person is usually appointed with no issue. If, however, the deceased parent has not nominated anyone, the Judge will consider the law and the request from what frequently turns out to be competing relatives. If there are competing relatives, the child could be placed in foster care until the Judge makes a decision. It also goes without saying that the people with whom the child is placed may not be the people the deceased parents wanted.

What you need to do

The way to avoid this scenario is to nominate a guardian in your Last Will and Testament. While a Judge is not legally required to honor a nomination, for all practical purposes, the Judge will honor the nomination (your choice).   In my law practice, we address the critical decision of guardianship in all Wills and Trusts we create.

Checklist of items to consider when buying or selling real estate

From http://momoge.com

If you are buying real estate, my top recommendation is to use a licensed realtor. The kind of person who legally has the right put the big “R” by their name. I know several good ones, including Dave Moeller of Redbud Realty & Associates in Edmond. The standard principal applies: hire a professional to do the work that is outside of your area of expertise. Buying a home is one of the most important decisions we make and having solid representation in the process is critical.

If for some reason you find yourself purchasing or selling land without a Realtor, consider these basic points as a starting place to negotiating the deal:

What is the purchase price?
How will the purchase price be paid? (all at closing, part earnest money and the rest at closing)
What are the conditions on which earnest money can/is required to be refunded?
Who will pay for the title work on the property?
Who will pay the transfer fees connected to the recording of the deed?
Where will closing happen? (typically a title company in the county where the property is located, but you can close a real estate deal without being physically present at signing, you can sign the documents in advance)?
Are you transferring mineral rights to the property or keeping the rights?

If you want to get more tips and checklists like this, please sign up for the email list.

What is an Oklahoma statement of judgment?

An Oklahoma statement of judgment is the vehicle through which someone enforces their judgment. It is closely associated with a lien because that is what the statement of judgment creates.

What does a statement of judgment do?

The statement of judgment creates a lien on all real property owned by the judgment debtor within the county in which the statement of judgment is recorded.

What is an example of how a statement judgment works?

That typically means if I file a statement of judgment with the Oklahoma County Clerk for Joseph Smith, a lien is created from the date I record the Statement on whatever real property Mr. Smith owns in Oklahoma County. If Mr. Smith owns real property and Beckham County for example, then I have to record a statement of judgment in back in County.

What is the process for recording a statement of judgment?

Either the judgment creditor (the person you have the judgment) or sometimes an attorney for the judgment creditor files, unsurprisingly, a document known as a statement of judgment with the county clerk. The statement provides the critical details about the judgment including the county, the amount in the name of the judgment debtor (i.e. the person who owes on the judgment).

What does it cost to record a statement of judgment?

It’s $13 for the first page and $2 for each additional page, so usually approximately $15.

What happens after the statement is recorded?

Besides the lien being created, not much. That is unless somebody takes some kind of action to foreclose on the lien, the statement of judgment could sit there for a lengthy period of time. There is another way however where the statement of judgment could trigger some action: if the person who owes the money is selling

If the person who owes the money is selling property or trying to refinance property that they own, typically the lender is going to require the statement of judgment be paid off before closing. As you might expect, this type of leverage can go a long ways towards getting the judgment paid.

I GUARANTEE you will learn something in this post about a guaranty

Yes, pun intended; I had to get your attention somehow, right?

If you have been involved in commercial lending in any capacity, you have probably come across the guaranty (in this post, I am using the terms “guaranty” and “guarantee” interchangeably, as both a noun and a verb, per Adams on Contract Drafting). In working with clients on issues where a guaranty is required, I have noticed some confusion about what is actually being given. Below is material to clear up the confusion.

Guaranty, defined.

According to dictionary.com a guaranty is a “warrant, pledge, or formal assurance given as security that another’s debt or obligation will be fulfilled.” The alternative definitions provided by dictionary.com provide that a guaranty can be something that is presented as security or a person who acts as guarantor.

A guarantee (or a guaranty) is promise by a person or a company to be responsible for another person or company’s debt. Here is a visual example:

There are a couple of types of guaranty:

Unconditional Guaranty

An unconditional guaranty means that the person or company that signs it, the guarantor, “unconditionally guarantees payment to Lender of all amounts owing under the Note.” Some of the finer points:

This guaranty remains in effect until the loan is paid in full.
The guarantor must pay all amounts due under the Note when the lender makes written demand upon guarantor.
The lender is not required to seek payment from any other source before demanding payment from guarantor.

Personal guarantee

This is another variant of the guarantee. With this instrument, the guarantor is agreeing to be individually liable for the debt. While an entity may be the actual borrower, the guarantor is agreeing that it will pay the debt if it not otherwise paid. Without the word “unconditional” added to it, this means that the lender may be required to seek payment from the borrower first before trying to recover directly against the guarantor.

The individual guarantee a common requirement when a new business is applying for a loan. Without any credit history, the lender requires additional security beyond the business’s promises to pay and the additional security is one or more individuals involved in the business agreeing to pay.

Distinction

One example of the difference between an unconditional guarantee and a guarantee of payment found in comparing the SBA’s Form 148, the Unconditional Guarantee with the SBA’s Form 148L, the Unconditional Limited Guarantee.

The key point in this discussion is if you sign a personal guarantee, you the are putting your assets at risk to secure the loan. This is not uncommon but it is important to understand the effect of the personal or individual guarantee.

Oklahoma Business Law: When is an employer required to pay for overtime?

If you are a business owner or someone in a position of authority with a business, do you know if your business required to pay overtime to employees?

You might be surprised by the answer, read on to find out.

For Oklahoma employers covered by the federal Fair Labor Standards Act (“FLSA”), the FLSA controls the payment of overtime. Here are the basic requirements your business must meet to required to pay overtime pay:

The business must be covered by the FLSA. Consider this blog post to answer the question of whether your business covered by the FLSA.
The employee must not be an exempt employee to qualify for overtime pay. Consider this post for the type of employees who might be exempt from the FLSA.
The employee must work more than 40 hours in one work week.

What is the work week? I have seen some uncertainty about this from employers. According to the United States Department of Labor:

The Act applies on a workweek basis. An employee’s workweek is a fixed and regularly recurring period of 168 hours — seven consecutive 24-hour periods. It need not coincide with the calendar week, but may begin on any day and at any hour of the day. Different workweeks may be established for different employees or groups of employees. Averaging of hours over two or more weeks is not permitted. Normally, overtime pay earned in a particular workweek must be paid on the regular pay day for the pay period in which the wages were earned.

To summarize: All nonexempt employees of an FLSA-covered employer must be paid at a time and a half for all hours worked over 40 in the same work week.

Discouraging fact provided by the Tulsa World:

Oklahoma Minimum Wage

Get on the right track for analyzing your Oklahoma non-compete agreement

Have you wondered if there is an easier path to begin the analysis of an Oklahoma non-compete agreement? If so, you are in luck.

I have written extensively about Oklahoma non-compete agreements, non-solicitation agreements, non-disclosure agreements and related competition documents. Recently, it ocurred to me that there is a better to explain how Oklahoma competition law fits together.

Oklahoma public policy is decisively against non-compete agreements . . . that limit employees. This directly in contrast to a couple of other areas where Oklahoma public policy expressly allows non-compete agreements. Those areas are when partners make an agreement about how to handle the break-up of a partnership and if the goodwill of a business is sold.

Determining whether you fit into to the first or second scenario is about 99% of the battle in determining whether the non-compete restriction will be enforceable. To best understand Oklahoma competition law, think of an analysis moving across two tracks:

Were you an employee when you signed the restrictive agreement?
Were you an owner of a business when you signed the written agreement?

The answer to these questions determines your track. If you are on tract 1, consider this post for some additional guidance. If you are on track 2, consider this post for additional guidance.