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.

Print This Article

When you have a conversation with Yi Sun Kim, you quickly get the idea of what she is truly passionate about: her family, her pro-bono work, helping people, and the law. People who don’t know her would be mistaken to think she is a shy, demure, easily-swayed attorney that just sits at her desk pushing transactions and settling cases. Once you know her, she is anything but. She is outspoken, has a wicked sense of humor, works extremely hard at maintaining her relationships with friends, colleagues and family, and has just made partner at one of the San Fernando Valley’s premier law firms, Greenberg & Bass. She specializes in bankruptcy, business litigation, business formations and transactions.

In case her law practice is not keeping her busy enough, she volunteers at the Self Help Desk at the San Fernando Valley Bankruptcy Court. She helps individuals who need to file Chapter 7 by giving them free assistance on what the procedure is like and how to fill out their paperwork. This particular Self Help Desk is coordinated by Neighborhood Legal Services of Los Angeles. In 2015, she was the recipient of Public Counsel’s prestigious Lasarow Award for this pro bono service.

Her current involvement as Secretary on the Board of Directors for the San Fernando Valley Bar Association has her on track for what could be the first Asian American President of the SFVBA.

On the eve of her partnership celebration at the firm, we asked her some questions about her path to becoming partner.

You got out of law school just at the beginning of the great recession. Did this have any impact on your choosing bankruptcy as a primary practice area?

Absolutely. While I was awaiting my bar results, Greenberg & Bass hired me as a law clerk to assist with a new, large case in the litigation department. It required reviewing something like 50 boxes of documents, so it initially took up all of my time. Then the economy turned so quickly that the firm’s existing robust bankruptcy department suddenly needed even more assistance. Although I continued to work on business litigation matters, I spent an increasing amount of time focusing on bankruptcy matters, both from the debtor and creditor perspectives. Although the firm handled many business related filings, it was the individual or personal bankruptcy cases that really pulled me in. Helping people go through such a scary process, and seeing how relieved they are afterwards knowing they can move forward with a fresh start for themselves and their families, made me feel like I was actually doing something worthwhile. Therefore, although it started out by necessity, I found that I really enjoyed bankruptcy law and proactively inserted myself into more bankruptcy cases as they came in.

You have been recognized as a Rising Star by several organizations and publications. What do you attribute your success?

The number of people who have helped me and continue to mentor and support me. My family has been my biggest inspiration when it comes to hard work and integrity, which keeps me on the right path. And since Day One, fellow partners James Felton and David Adelman along with everyone at Greenberg & Bass, staff and attorneys, have taught, mentored and pushed me. Law school taught me about the written laws and procedures, but G&B is where I was trained on the practice of law, as well as how to communicate with people. They are also generous when it comes to highlighting me and my practice, making sure that I am seen, so much so that it is hard for people not to notice.

How are the bankruptcy cases you deal with today different from those during the worst of the recession years?

The bulk of the bankruptcy cases I handled during the recession was, understandably, related to real estate: Individuals who could not pay their mortgage, investors whose collateral rapidly depreciated, or vendors in related industries who suddenly lost their client base. There are significantly fewer bankruptcy filings today. The personal filings are usually persons who have experienced an unfortunate change in circumstances, such as a sudden injury or illness resulting in loss of employment and substantial medical bills. The trend in business filings is with retail stores, especially in the apparel industry.

You do business litigation, primarily in the areas of disputes arising from bankruptcy actions. What are some of the typical cases like that go to litigation in this area?

When an individual files for bankruptcy relief, his or her intention in doing so is to eliminate their liability or obligation to pay their existing debts (i.e. have their debts “discharged”). Not all debts can be discharged, and the individual will remain liable to pay those debts even after the bankruptcy case is completed. For example, if the debt was incurred by fraud (e.g. knowingly providing a false financial statement to obtain a loan), then the creditor can file a litigation case within the bankruptcy case to obtain judgment saying the debt cannot be discharged. Therefore, many of the bankruptcy litigation cases I have handled center on fraud.

In addition, if the debtor transfers money or property to a third party just before the debtor filed the bankruptcy case, the debtor or trustee may try to get that money or property back from the third party. In some circumstances, the trustee can lawfully unwind those transfers of money or property by filing a litigation action in the bankruptcy case.

You also work at the opposite end of the business spectrum from bankruptcy. You work on formations and startups. What words of advice do you have for today’s startup companies?

Today there are numerous lenders and investors who are willing to help fund exciting new ventures, especially in the technology field. However, having seen the downturn of the economy before, I would caution against being too overzealous with borrowing and to pay special attention to the penalties or personal exposure that can result if the business proves unsuccessful. One should always have an attorney draft or review an agreement before it is signed—even if (or actually, especially if) the agreement or business venture is amongst friends. There are many deficiencies in the form agreements that are floating around online. If the agreement is not complete, then formerly friendly business parties can face protracted and expensive litigation fighting over what the parties intended the contract to mean or say. If a contract is complete, then the parties cannot dispute what is written there and they can come to a quicker, less costly resolution. And even if a person is handed a well written agreement by a lender or investor, he or she should have an attorney review it since it may have provisions that put the ­person or his or her personal assets at more risk than the person realizes.

As someone who has risen quickly in the legal ranks, now as a partner of your firm and a trustee of the Bar Association, what advice do you have law school students and young attorneys just beginning their careers?

Generally I find that in your first couple of years, you make mistakes or take a long time trying to figure out what you are even doing. As frustrating as it may be, you remind yourself that you are a brand new attorney so it is expected. But in your third year, and forever after, you will continue to make mistakes or face issues or fact patterns that you do not know how to resolve. You no longer have the “excuse” that you are brand new, and it can be a humbling and stressful experience. You have to remind yourself that it’s okay, you’re going to make mistakes or come across challenging issues throughout your career. What makes you a good lawyer is knowing what to do next—how to fix the problem, or what resources to access to get the solution. You’re not meant to be perfect, let alone a walking encyclopedia. You’re expected to be resourceful and a problem solver.

I would encourage new lawyers to be social and open minded. Meet as many lawyers as they can in different fields. For years, I had no idea how many types of law or practices were available, or that each firm has its own unique culture and way of functioning. You may discover a field that you can be passionate about, or a type of firm that is compatible with your working style and particular skills. And even if you are already exactly where you want to be, you can find great mentors who will help you grow that practice or adjust as you progress. The San Fernando Valley Bar Association offers a number of opportunities for new lawyers, including sections that highlight different areas of law, networking and social activities with attorneys of various backgrounds and expertise, and community outreach programs where you can test out your skills while helping people in the community. •

Print This Article

BAD FOR THE BRAND™
http://badforthebrand.com/
Jonathan Fitzgarald is a friend of ours and is currently the director of  business development for a leading Los Angeles law firm. More than all that, he writes the best blog we’ve found—ANYWHERE—on personal branding. As his “about” pages says, “Drawing real-life examples from some of our favorite personalities in entertainment, politics, and business, BAD for the BRAND™ provides commentary and advice on managing and promoting a strong, personal brand.” This blog is worth every minute you put into reading it.

USABLE INSIGHT BLOG
http://markgoulston.com/
This blog comes from Dr. Mark Goulston, a “business” psychiatrist. Mark has authored a number of best selling books, including his most recent “Just Listen,” as well as countless articles. Mark has the incredible ability of cutting through the fog and haze that surrounds not only today’s fast paced business world, but also our lives in general. Usable Insight will not only help you make it through the night, it will help make your days better, too.

LUCKY NUMBER 13
http://robcohen13.com/

Rob Cohen is an estate planning and trust attorney in Woodland Hills. His blog, thought, is as much about life as it is about law. Sometimes it crosses into the world of law, but it more about Rob’s experiences and examinations of life in general. Reading Rob’s blog is kind of like listening to Andy Rooney, or maybe even a Jerry Seinfeld monologue. You can almost hear, “did you ever wonder about…” when you read it. It’s a blog that is sometimes fun, sometimes serious, but always worth a read.

Lewitt Hackman General Law Blog

http://www.lewitthackman.com/blog/

Lewitt Hackman is one of Southern California’s leading multi-discipline law firms. Their attorneys are highly respected, are active in the community, and are prolific writers. This blog, one of two the firm puts out, is just what the title says: General Law. This is a great one-stop law shop, with tips, trends, and updates on all sorts of different topics. And while it is basically a legal blog, it’s very interesting reading for just about anyone.

GRACE NPC’s BUILDING THE NON-PROFIT BRAND

http://blog.grace-npc.com/

Okay, this one may be a little self-serving, but that’s life. This is the blog written by our publisher, Jerri Hemsworth. When Jerri isn’t publishing Southern California Professional Magazine or designing award-winning advertising, she’s busy doing something for a non-profit. Building The Non-Profit Brand is blog she started to help Executive Directors of non-profits learn from the vast amount of research that is out there but sometimes hard to find. If you have a charity or philanthropy that is close to your heart, turn them on to this blog. They’ll thank you for it.

Print This Article

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. •

Save

Print This Article

This economy has caused a lot of businesses to change ownership. The problems on one side of the table have become opportunities for the other side.

Perhaps you have been thinking about acquiring a franchise operation. There are golden opportunities available, but get ready for twice the due diligence of a traditional deal. The upside: there might be twice the pay-off if you do it right.

Indeed, caution is the by-word in considering the acquisition of a franchisor. Any such deal gets the buyer a unique distribution system consisting of scores, perhaps hundreds, of franchisees who will prove key to the success of the deal.

First Considerations

The franchise business is all about brands and franchisees, and the two concerns interact. The brand is promoted to attract quality franchisees, and then the franchisees are supported to promote the brand. And because franchisees are keys to success, a potential buyer must focus due diligence on the financial and legal health of both franchisor and franchisee. Why? Because a system that is inherently unprofitable for the franchisee will likely be a bust for the franchisor, too.

What does it take to do the right kind of due diligence when buying a franchisor? Where can trouble crop up, and how can one leave oneself room to structure the final terms of the deal to fit the reality one uncovers?

The first step is to inspect the uniform franchise disclosure documents (FDD’s) used by the franchisor in each state where it has done business over the last five years. Thirteen states—California, Hawaii, Illinois, Indiana, Maryland, Minnesota, New York, North Dakota, Rhode Island, South Dakota, Virginia, Washington and Wisconsin—seek to protect franchisees by requiring franchisors to disclose a great deal of information in the FDD and place it in the public record, usually by registering it with the state attorney general.

Six states—Florida, Michigan, Nebraska, Kentucky, Texas and Utah—require franchisors to file only a one-page form, and the others permit franchisors to operate as long as they meet the requirements of at least one of the 13 “registration” states. In addition, irrespective of these differing state requirements, federal law requires franchisors to give copies of their disclosure documents to all prospective franchisees.

This inspection of the records reveals whether the franchisor has properly registered its offering circular where required and whether it has faced state disciplinary action or litigation by franchisees. The FDD must detail the franchisor’s business experience and that of its senior executives, including any bankruptcies and securities violations. As a result, the inspection will turn up at least a cursory notation of any such difficulties, and lead to inspection of other records, i.e. court filings, regulatory records, etc. that describe any problems or deficiencies in detail.

In each case, it is important to understand the nature of the complaint, the franchisor’s explanation or defense, and the result. Was the violation serious or minor? Was it intentional or the result of clerical error? Was it an isolated incident or part of a pattern of behavior? A buyer needs this information to position yourself, when drawing up the warranties and representations of the purchase agreement, to keep the seller on the hook for any trouble that may not be fully known at closing.

Further Due Diligence

The next step is to inspect the franchise agreements in use in each state in which the franchisor operates. This means checking their terms against those of the standard agreements in the FDD. The object here is to discover whether the franchisor entered into any special arrangements with one or more of its franchisees. An example might be providing special terms to favored franchisees, such as giving a franchisee is Los Angeles the right of first refusal when new or additional franchises are available in neighboring Orange County.

This is important to the buyer of a franchising company because it takes on all the obligations of the seller, except those that are expressly left behind in the purchase agreement. A buyer probably cannot escape a side deal such as granting a right of first refusal, assuming it is a valid arrangement, but it can adjust the terms of the deal to reflect the impact of the agreement on post-acquisition plans. If the agreement proves to be too restrictive, such as limiting expansion plans in Orange County, it could cause the buyer to back out of the deal altogether. In any event, the buyer is at minimum informed of the situation.

For the same reasons, it is also important to track down the agreements with franchisees in all states in which the franchisor operates. It may be impractical to check each. These agreements may number in the hundreds, or even in the thousands, making it costly and time-consuming to inspect every one. The solution is to collect a fair sampling and require the franchisor to warrant that there are no undisclosed side deals with franchisees that materially affect the terms of the purchase.

In checking these records, the acquirer’s investigators must take special note of all obligations taken on by the franchisor regarding training, advertising, marketing, and other business functions, all of which represent costs affecting the value of the deal.

For the same reason, the buyer must look for other financial arrangements between the franchisor and its franchisees. A primary target for inspection should be the promissory notes and security agreements that are in place if the franchisor offers financing to help purchase the franchise.

It is equally important to inspect the franchisor’s records of all leases tied to its franchise agreements. In some cases the franchisor itself will lease the property in question and sub-lease it to the franchisee. In others, the franchisee will lease the property directly. Either way, a buyer must match up each lease with its respective franchise agreement, making sure that the terms agree. The buyer also must be certain that no third-party clearance is needed, such as approval of lease transfers by real estate owners.

A great deal of examination can be done in the offices of the franchisor, where other important but unpleasant items may be found, i.e. notices of late payments or default by franchisees, correspondence regarding disputes between franchisor and franchisee, or records detailing the processes followed in terminating franchise agreements. In essence, the goal here is to find out what went wrong between franchisor and franchisee so that a purchase agreement requires the seller to stand behind appropriate representations and warranties.

Final Thoughts

In all of this, it is crucial to step carefully, since few deals close without a hiccup or two.

There is risk for both buyer and seller in any acquisition involving a franchisor, but don’t let that make you run away from the idea. The due diligence necessary to any such acquisition is tough, but it’s really just a measure of the possible pay-off.

The business lawyer doing due diligence in the purchase of a franchise company must track down a great many documents to gain an accurate picture of the relationships between the franchisor and its franchisees. Then the real work begins. It is also necessary to inspect the documents in detail and draw up representations and warranties holding the seller of the franchise company responsible for any agreements or information contrary to or inconsistent with the documents inspected or information provided during due diligence. In deals involving large numbers of franchisees, it becomes impractical to obtain and inspect every document on this checklist, of course. In such cases, the lawyer should sample a number judged reasonable by the client and shape the language of any representations and warranties accordingly. •

Print This Article

It turns out more than 1.4 million lawsuits are filed in the state each year. The article highlights the “drive-by” lawsuits: where people sue just to get money, and not to fix a probem or serve justice. “Vexatious litigants,” those who suit just to harass, are part of a growing problem in California, according to Maryann Marino, regional director of California Citizens Against Lawsuit Abuse (CALA). For those interested in combating frivolous lawsuits, we suggest a click to their website at http://www.cala.com/. The non-partisan group is a grassroots effort that serves as a watchdog over the abuse of our civil justice system. •

Print This Article