The Old “Borello” Test

Prior to the California Supreme Court’s ruling in Dynamex, the Borello test prevailed. Under the Borello “economic realities test,” courts first evaluated whether the person to whom service is rendered has the right to control the manner and means of accomplishing the results desired. Then, a number of additional factors are taken into consideration, none of which are dispositive on its own, but all of which are evaluated in the totality of the circumstances. These factors generally included:

1. Whether the person performing services is engaged in an occupation or business distinct from that of the principal;
2. Whether or not the work is a part of the regular business of the principal or alleged employer;
3. Whether the principal or the worker supplies the instrumentalities, tools, and the place for the person doing the work;
4. The alleged employee’s investment in the equipment or materials required by his or her task or his or her employment of helpers;
5. Whether the service rendered requires a special skill;
6. The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision;
7. The alleged employee’s opportunity for profit or loss depending on his or her managerial skill;
8. The length of time for which the services are to be performed;
9. The degree of permanence of the working relationship;
10. The method of payment, whether by time or by the job; and
11. Whether or not the parties believe they are creating an employer-employee relationship.

The New “ABC” Test

The Supreme Court in Dynamex reevaluated the multi-factor Borello test, and as a result there is a new, three-factor “ABC” test used when evaluating whether a worker has been properly classified as an independent contractor. The Court held that the analysis begins with the rebuttable presumption that a worker is an employee and that an entity classifying a worker as an independent contractor bears the burden of rebutting the presumption by establishing each of the following three factors:

(A) that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact; and

(B) that the worker performs work that is outside the usual course of the hiring entity’s business; and

(C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.

Failure to satisfy any of the three factors of the ABC test results in a finding that the worker is an employee and not an independent contractor.

What This Means for Hiring Entities

The new ABC Test provides a more rigid framework for compliance and less flexibility in the “grey” areas. As a result, hiring entities should be cautious when classifying workers as independent contractors to ensure that the worker’s classification will satisfy the ABC test. Hiring entities are encouraged to seek the advice of experienced legal counsel whenever classifying certain workers as independent contractors.

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The study revealed that finds that three in ten workers say they feel stressed about preparing for retirement. In addition, six in ten workers (61 percent) say they have saved for retirement, though just four in ten have tried to figure out how much money they will need in retirement (41 percent).

“I continue to be struck by the relatively small share of workers who do formal retirement planning,” said Lisa Greenwald, assistant vice president of Greenwald & Associates, and co-author of the report. “Use of a financial advisor increases with age and income, but just 23 percent of workers say that they have spoken with a professional advisor about retirement planning and only one in ten report they have prepared a formal plan for retirement.”•

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Business consulting often focuses on the most tangible challenges: cash flow, supply chain, work flow, job descriptions, salaries and bonuses.

In my work with companies and corporate teams, I often take an “inside out” approach. “Inside out” focuses on that which is not so easily seen and often can be a far more powerful inhibitor of successful operations. We see four (among many) factors that, once identified can create a pathway for improving personal performance of employees and managers.

The so-called negative employee. We all know and recognize this person and it’s easy to demonize them. We have found numerous examples that may seem to you to be “counter intuitive.”

The negativity you see often hides a strong desire to positively impact a team through naming what’s wrong. We call this employee the “truth teller” and he or she is easy to dismiss because what they are saying is not well said or is said with so much emotion we feel uncomfortable listening. As in ancient times this messenger of necessary information can be a victim of “kill the messenger.”

Solution: Find a leader who isn’t afraid to listen carefully to all the complaints this employee brings. Honor each one and create a leadership meeting where the complaints or criticisms are seen in a non-emotional objective light, and then decide what’s valid.

The orphan. Within every organization there are insiders and outsiders. Like the school yards of our youth we all want to be part of the in crowd. The “orphan” will linger on the outskirts if not seen for their unique contributions, their work ethic, perhaps their shyness and their reluctance to speak up.

Solution: Empower this employee through intentionally welcoming their input, inviting them to small group gatherings, asking for their help with a project not necessarily in their domain. Offer a little training or coaching where they need it. Seeing it, naming it, acting on it will change the complexion of your team.

The narcissist. This person creates more attention for themselves than is warranted and causes anxiety among team members. They may look good but their self referencing all successes of the team undermines loyalty, goodwill and focus.

Solution: A good muscular interview exploring their needs, their true contributions, their own exploration of their effect on the team—can open the way to coaching that focuses on building a realtime relationship with leadership. Remember: the narcissist wants to be seen, wants to be important. Give them a pathway where they can, in a healthy way, achieve that.

The addict. Addiction is not only about alcohol and drugs. It is a personality style as well. The addict can’t stop themselves from smoking/eating/drinking/working/gossiping, etc.

Solution: This employee needs help but it must be artfully offered. Intervention should be by design using leadership that is itself insightful, kind and proactively oriented. Acknowledge their contributions, probe (a little) around whether they self diagnose their own situation, offer outside the office help (if appropriate) and make a coach available to them. If successful this somewhat driven employee will become even more valuable to your organization as they gain some (inner) control over their demons.

Hidden factors, mostly psychological in nature, can when addressed, fuel real growth in team performance. Work to identify them and then to turn them into positives for your company. •

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They are lazy. They are loners. They are narcissistic.

That’s the millennial stereotype. Always on their smartphones, probably Snapchat or Instagram, or the social media du jour.

But is it true? Is that who the largest workforce in our world’s history really is? Is this group, more than 80 million strong in the U.S., who will really inherit the country? Are they really as lack luster as business articles and 24-hour new channels would lead us to believe?

I don’t think so. Here are five mistakes I have found in the way people are looking at millennials and how they are getting this generation wrong, in terms of understanding their habits as employees and catering to them as customers and clients.

Life In The Trenches

Shortly before the 2008 Recession, I was asked to “cover” a class for a semester by a departing professor at Pepperdine University. Somehow I must have done all right since I have now taught more than 30 classes at the university.

In my very first class as a professor, an advertising media class, students urged me to check out a website called MySpace. This was circa 2005/2006. I jumped in, got the lay of the land, and even executed a promotion for a client based on what my students had taught me about the new “social media.” That was a spring semester. By fall, ­MySpace was over.

“Facebook, Professor Hemsworth. You gotta get on the Facebook,” they all said, just months after telling me MySpace was “the best.” With my .edu email, I created an account, but found it to be a big waste of time. But by 2007, something started to click, and social media took off. I jumped on, and though double the age of most millennials, I had a front row seat, both physically in my classes, and virtually, as an early adopter of social media.

I watched carefully as students fell away from books, and into iPads. They were less concerned about dating, but rather with Friday nights of “Netflix and chill.” Their phones became their most prized possessions. And in school, they believed that they were invincible, the most “wired” generation ever.

Myth #1:
Millennials Are Lazy

Here’s the one I think baby boomer managers (and sociologists) get totally wrong. I don’t believe they are lazy, I believe that millennials have generational ADHD. They are suffering from a tremendous saturation of information—immediately, constantly, and uncontrollably.

I teach the Senior Seminar each spring semester. It’s the capstone course in Integrated Marketing Communications. Students dutifully give me their attention up until about spring break, and the BAM! They check out. Gone. Sometimes physically. Always intellectually.

I’ve studied this, interviewed students, shared notes with other professors, and I have a few theories on this. It’s more than just senior-itis, which everyone of every generation gets in the last semester of undergrad. “I just want out.”

Well, millennials want out, but it’s more than that. They want also want “in.” They want out of school but they want in to work, to jobs, to society, and to wealth. I think they’re more like the young child attracted to the shiny object, and as seniors, there are lots of shiny objects out there.

I have learned the key to keeping them engaged in class is like a page out of John Wooden’s playbook…change of pace and change of direction. If I change pace or direction, they are curious and hang with me. If I don’t, they move on. I also found that the second half of the semester is less about traditional class time, and more about projects that can be done on their own time. During a recent semester, the time of the day most assignments were turned in online? Between 1:00 a.m. and 3:00 a.m.

Myth #2:
Millennials Don’t Know What Hard Work Is

Another common misconception is that millennials aren’t hard workers. They always look for the easy way out.

It might be true that they look for the easy way out, but that’s not such a bad thing. Their easy way out is probably a better way to do things.

Here’s a true example. In 2009, I had a college intern working on out team for the summer. He was the son of a client of ours. On his first day, we called him into a meeting. We were discussing social media strategies for a big sports equipment of ours.

About two minutes into the meeting, he took out his cell phone, and began typing away. I was pretty agitated, but thought I’d give him the benefit of the doubt, that maybe his dad was texting him or he got some kind of important message. He occasionally looked up, but then kept typing.

I was baffled by the behavior (something that was relatively new at the time, but par for the course nowadays). I gave it about one minute, then I figured it was time to let him have it. I was going to give him a dose of “what for” about business meeting proprieties.

A millisecond before I opened my mouth, he said, “You know their competitors have a lot more friends and likes, but a lot of them are fake.”

“Huh?”

“Yeah, I just checked their numbers, and spot checked a few of their followers, and they’re fake. They’re all from Eastern Europe, and they don’t even distribute there.”

What I thought was rudeness was, in fact, market research being done in real time. This intern did more quality market research with his phone in 60 seconds than I had done in a week.

That’s when I learned that for millennials, it’s all about channeling the effort. Don’t stop their efforts, just change their efforts and trajectory slightly to align with your company’s.

Myth #3:
Millennials Are More Socially Responsible

This one is not entirely a myth, but it’s not exactly as it seems.

There are countless articles and studies out saying how important social responsibility is to millennials. The disconnect I have witnessed is in what millennials say versus what they do.

For example, millennials say they want greater transparency and higher ethical standards. I hear it all the time in my class. Yet they are the generation that has embraced companies like Uber, Chipotle, and Volkswagen. Millennials say they want fairness, yet Uber is the virtually unregulated and unlicensed arm of transportation that is putting licensed taxis out of business (not that I mind it). I think they want fast, affordable fares. Chipotle, having built a customer base of millennials with organic and locally grown ingredients, suffered heavy losses after well publicized E. Coli, sexual harassment, and drug scandals. Millennials dropped Chipotle like a hot burrito. How did Chipotle lure them back? Free food. Not exactly appealing to their sense of fairness, but definitely to their wallet. And Volkswagen, the environmental liars of the new millennium, were recently named one of the top five auto brands of millennials by AutoGuide.com.

What do these have in common? I believe millennials think they are more socially responsible, and maybe they are, but I don’t believe they are appreciably different in action than previous generations when it comes to spending. They want deals, they want to stretch their dollars, and they want more value.

I think the key is not to pander to millennials and then not deliver, but rather have social responsibility as a key component of your brand, but don’t overlook value. Millennials still have a lot of student debt to pay off!

Myth #4:
Millennials Feel Overly Entitled

Like #3, this may not be completely wrong, but I don’t think it’s the whole story.

The baby boom came of age in the ’60s. It was the pot smoking generation. The hippies. The war protests. Dropping out. If you asked the average parent during that time, the country, if not human civilization, was going downhill fast.

And now look at the results: Wealth, prosperity, trips to the moon, advances in medicine, and the Internet. Not bad for a bunch of slacker hippies, eh?

That’s the context with which I think we need to view millennials and their sense of entitlement. Gen X gave up, but millennials want what’s coming to them. They want success, they want wealth, and they want the accolades.

Some complain that millennials want to “get rich quick.” Does that make them any different than previous generations?

Baby boomers climbed the corporate ladder, but we were just as likely to jump off and make our own ladder. We wanted to create cable TV shows, build better mouse traps, and explore/exploit new markets as much as any generation, and maybe more. We didn’t want to wait, but we didn’t know any better.

Gen X, on the other hand, tossed in the towel, as a generation. They became baby boomers or millennials. We didn’t hear of their yearning for opportunity, their creative business sense, or their entrepreneurial spirit.

Millennials have seen people create products, programs, technologies, and websites that have made millions and billions of dollars. Why shouldn’t they want some of it? And for a lot of them, their parents worked hard and earned a lot, and the truth be told, the millennials are standing in line to inherit the whole shooting match. Economists believe we are on the verge of the largest generational shift of wealth the world has seen.

Dealing with entitlements is difficult. I have seen it in the classroom, with students feel they “deserve grades” for effort, despite lack of results. They are very protective of their time (don’t ask them to stay after class, that’s their time).

One tactic I have tried and appears to work is to be painfully explicit in communicating expectations. We, as employers and creators of products must communicate what our brands and companies are “all about.” We must let people know what we stand for, and what we don’t. Additionally, we must solicit the expectations of our customers and employees. What do they want? What are they willing to work for…pay for…fight for? The more we can articulate these expectations, the better we will all be.

Myth #5:
Millennials Are Loners

Every generation has its loners. Some feel this generation has more than its share, but I don’t see that. They appear to have more loners, but that’s in large part because the baby boomer and Gen Xer’s sense of group is different.

We, the previous generations, hung out at the school yard, the soda shop, or the mall. Millennials hang out in the chat room online. I recently told a group of students that as a guy growing up, it took all courage we could must to ask a girl out on a first date. Time was when it had to be in person. Then, thanks the technology of the telephone, we could at least partially hide our embarrassment on the phone line.

Today’s millennial swaps phone numbers (for texting) and social media handles in a much freer way that we did phone numbers. They also have the ability to “stalk” online. We used to have to stand afar, out of view, wondering what someone was like. Today millennials can check out profiles, blogs, social media, and other online sources to know all about someone before ever texting, calling, or Heaven forbid, talking to someone.

A recent study indicated that heavy users of social media actually get small shots of dopamine when they receive likes, follows, shares, or comments on social media. It’s become their drug of choice. When we look at millennial sons and daughters, students, and employees, and we see their faces in the smartphones, we think they are by themselves. In fact, they are hyper connected to one, several, or even many friends all at the same time.

Psychologists and sociologists can argue if it’s healthy or not, but the fact is that this is not just a tech fad, this is a way of life…the way of a generation.

Possibly the best way I have seen to harness this and channel it for the better, is to find ways to being inclusive. Millennials want to be a part of something. It may be a group chat, or a social movement. They may want to be one of the many going to Coachella, or they may want to be one of the many downloading a new app, but they want to be included.

So, as employers, or brand purveyors, I suggest you find ways of inviting millennials in. Let them join the club. Maybe it’s the “Let’s go to Starbucks at 9:30” club, or the “We’re working for Habitat for Humanity this weekend” club. Maybe it’s asking them to lunch, so that you can ask them what they care about, what’s on their mind. And it always needs to be about including them in a mission. Millennials want to get somewhere, accomplish something, so you can do a lot for yourself and your company or brand if you let people know where you’re going.

Conclusion

Millennials do represent change, but it’s my experience that they are not really all that different from what we’ve all experienced with other generations in the past. Mary Tyler Moore threw her hat up in the air. Michelob told us we can have it all. Napoleon Hill told us to think and we would grow rich. Ford said they had a better idea.

Millennials want it all, too. And they are thinking about it, and they have a lot of great ideas. But like every generation, there are forging their metal during these formative years. The reality will continue to unravel as they move up the corporate ladder, the payscale, and the age ranks.

Success in working with or marketing to millennials is more about learning where their habits and our habits intersect, and knowing where our hopes, dreams, and values come together rather than clash. •

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Women are far more forthcoming about their stress load with trying to “keep all the balls in the air” when it comes to work, kids, marriage, aging parents, social calendar, social media, etc. But men are much more reticent talk to a woman about their “balance” being in danger, let alone being completely off kilter. Why?

According to an article late last year by Caroline Fairchild that was posted on Fortune, “Men just don’t bring it up. That’s the finding of a recent survey out by Citi of more than 1,000 male and female LinkedIn members. Nearly 80% of women surveyed said they have never heard a successful man talk about balancing work with home. Still, over half of men said they have heard other men engage in conversation about work-life balance. The survey shows that while men may not be open to discussing these challenges with women, they are struggling nonetheless.”

I had lunch the other day with a colleague whom I admire and respect. He was struggling with the concept of having a conversation with his girlfriend about the recent challenges he was having with running his IT business. “I don’t want to put added stress on her. If she thinks that I’m having issues with my business, she may think less of me. She has enough to deal with already….”

My response was this, “If you expect her to be open with you with all of the things going on in her life, you have to share with her all the things going on with you in yours. That’s what a relationship is about. S-H-A-R-I-N-G. She will be there to support you and you’ll feel better.”

I think that men are basically hard-wired to be a “provider” and to suck-it-up when things get rough in the business world. Perhaps they feel that their partner won’t understand the stresses that go hand-in-hand with running a business. WRONG! If your partner loves you, SHARE with them. They will probably surprise you.

With regard to spending time with one’s children, do it. You truly don’t get this time back. I recently was sharing with another colleague that my husband and I must take a family vacation with our daughter this year. “She’s about to turn 15. We’ve only got her for another 3 years, at best, before she won’t want to spend any time with us or she’ll be too busy with college.” My colleague (a young man in his 60s) turned to me and said, “Do it. I did it with my 3 kids before they were too old and too busy. It was the best thing I could have done. I took the time away from my business and guess what? It survived and I was a better person for taking the time away with my kids.”

In the article, Fairchild quotes Linda Descano, head of content and social and North America marketing at Citi, and president and CEO of Women & Co., Citi’s personal finance resource for women, ” ‘It’s clear from the findings that men need to be a bigger part of the work-life balance conversation – and that we could all benefit from more communication about a variety of career issues, from the way we promote our work to how much we think we’re worth.’ ”

We need to encourage all business women and men to talk about their balance, especially men, since they tend to feel more isolated in their thoughts and ideas. Play, laugh, talk, cry and talk some more… it’s all helpful. Ideas and solutions to balancing out come from remarkable sources. Try it.

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Brinker v. Superior Court began as a case more than nine years ago. The class action was brought by restaurant employees who claimed they were denied rest and meal breaks. The California Supreme Court ruled that while employers must still “provide” breaks, they “need not ensure that no work is done during an employee’s meal period.” •

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Social media has added a new demand for employer protection from cyber activities.

 

Today, technology is growing by the nanosecond, far too quickly for employers to keep up. Long-standing privacy considerations are at near-constant tension with the advent of the Internet, social media, e-mail and other electronic communications tools.

To be competitive in today’s market, business owners must make effective use of social media. Current marketing trends almost require that businesses have an on-line presence, and volumes of encyclopedias have long since been replaced by Google searches. To protect their businesses, however, employers should set boundaries on their employees’ internet and social media activities, both inside and outside the workplace. Consider these protective methods to avoid damage to the company from employees’ electronic communications and social media activity:

Documentation. Implement effective and thorough policies on social media activity, confidentiality and electronic communications. Employees should be reminded in writing that all electronic communications created on company equipment or accounts will be monitored by the company, and that they have no privacy rights in these communications.  Have your policies reviewed by legal counsel – technology moves faster than the law ever will, and today’s courts are deeply challenged by litigants’ rapidly-developing arguments over newly-discovered electronic media.

Ownership. When an employer provides cell phones and laptops to employees and pays for the cell phone account and the wireless access, the employer owns and controls the cell phone number, e-mail inbox, internet accounts, and all social media or other electronic communications created by the employee while on working time, using company equipment, or otherwise controlled by the employer.

Included in “ownership” is the company’s brand, logo, customer information or other trade secret, confidential or proprietary property. While the employer may not prevent the employee from engaging in social media activities on his own time and while using his own equipment, the employer does have the right to pursue a claim against an employee who posts defamatory content on the internet.

Similarly, although an employer cannot safely terminate an employee who vents about a fellow employee in his social media posting, the employer can certainly terminate the employee who harasses a fellow employee in violation of the company’s anti-harassment policy, even when that harassment occurs during the employee’s off-duty conduct.

Monitoring. Employers can actively monitor their employees’ communications and internet activity, both internally and externally, as long as employees have been warned in writing that employers can and will do so in their discretion. Employers should also conduct their own internet searches using tools such as “Google Alerts” to track the information that has been published about the business and its personnel. 

Ultimately, business owners should keep in mind that you are (or should be) the owner of your company, your technological equipment, your electronic communications accounts, your employees’ working time and your reputation. With the advent of technology, we are drowning in information, but starved for knowledge. Make sure that the information publicly available about your company is not the information your employees choose to post, but instead is the knowledge you want to publish. •

CASE IN POINT:
Why Have A Systems Use Policy?

An insurance agency allowed its new agent, Cindy, to use her personal laptop computer and iPhone to conduct her business activities. The agency was thrilled to avoid the cost of a new computer, and was more than happy to reimburse Cindy for her business calls made on her personal cell phone.

Unfortunately, Cindy didn’t perform to the level the agency expected of her. Her sales results were substandard, and she seemed to be wasting an inordinate amount of time on personal matters in the workplace. Her supervisor reviewed her Internet activity while at work and discovered that she was spending several hours each day surfing the Internet on shopping sites, Facebook, and other personal search activities. Much to the agency’s surprise, they also discovered that Cindy was downloading customer lists and files and sending them to her home e-mail address. She was planning to move her business to a competitor agency.

The agency terminated Cindy and sued her for unfair competition activities. The court refused the agency’s demand to recover its customer list, because the agency had previously permitted Cindy to download it to her personal cell phone without restriction. The court also refused to consider the agency’s computer search results in its action against Cindy, because the agency permitted her to use her own laptop for business and personal use. The agency had failed to implement a “systems use” policy notifying Cindy in advance that her computer could be monitored at any time without prior notice. •

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