Independent Contractor v. Employee

In the Case of Bowerman v Field Asset Services LLC…Independent Contractor v. Employee

Contact us today for your consultation.
Contact us today for your consultation.

Well the time has come for the members of the national Association of Mortgage Filed Services to face the music. in this particular case it is the once MIGHTY Field Asset Services. The once proud company that was owned by a Canadian holding company and publicly traded on the New York Stock Exchange.

6 years ago I started stating that we were not an Independent Contractor and all the idiots with a business license stated I was crazy…Now that there has been a settlement in this matter I will divulge why I said what I said.

You see I saw the possibilities of “Subbing” the work out and we in fact did for three month. What we did was take Filed Asset Services contract and we removed their name and inserted Aladay LLC. We got spanked when one of our “Independent Contractor” filed for unemployment. 18k…

I can only imagine how large a fine would have been for FAS had they not reached a settlement. Today I write as the settlement has not been placed under seal therefore I at this time am not jeopardizing anything for anyone.

Let us look at the facts for a minute…

  1. You are told when to do the work

  2. You are told HOW to do the work

  3. You are told what materials to use to complete the work

  4. You are told what tools to use to complete work

  5. You are told where to purchase materials to use to complete the work

  6. You are instructed and provided “Training”

  7. You are told How Much you’ll be paid

These all equal what is called “Direction and Control” and there is a lot of it going on in the Property Preservation Industry…

Here is a section of the complaint form that has generated a settlement in this case to find more information about this go here

The notification can be found here

GENERAL ALLEGATIONS

11.

In September 2007, Plaintiffs began their employment with FAS. Plaintiffs were classified as independent contractors, but treated as employees from the first day of work until being inactivated in June 2012 due to oversaturation of vendors. During their employment with FAS, Plaintiffs were responsible for providing property preservation services for the San Francisco Bay Area including Mendocino, Lake, Sonoma, Marin, Napa, Solano, Contra Costa, Sacramento, San Joaquin, San Francisco, Alameda, Santa Clara, San Mateo, Santa Cruz, Monterey, and San Benito.

12.

At all times relevant herein, Plaintiffs, as with other class members, were not licensed general contractors, nevertheless FAS paid Plaintiffs asan independent contractor.

13.

Notwithstanding FAS misclassified Plaintiffs as independent contractors, Plaintiffs, along with other class members, were FAS employees in that FAS directly and indirectly controlled all aspects of their employment. FAS handled every detail of the relationship with Plaintiffs and other class members, which allowed FAS to manage properties through employees, known as vendors. Through technology and expertise, FAS scrutinized every work order from placement to completion. FAS measured every vendor on every step of every job.

14.

FAS assigned Plaintiffs, along with other class members, work orders through email notifications and access to an online database. FAS assigned work orders 7 days a week and required Plaintiffs and other class members to complete work orders within 72 hours or 3 days of receipt.

15.

Upon assigning work orders, FAS controlled and managed the completion of the work order. As with other class members, Plaintiffs spoke to FAS throughout the day to provide updates and answer any questions FAS transmitted either through a phone call or email. FAS sent daily updates, which included update lists of current open non-recurring work orders, and also for late work. FAS also sent Plaintiffs emails regarding its right to reassign work orders that were not completed within 72 hours of receipt.

16.

All work orders Plaintiffs and other class members accepted required them to follow certain protocols and procedures. Work orders were detailed and included specific requirements. FAS also obligated Plaintiffs to additional requirements and information, even if not in the initial work order. The level of detail and requirements in FAS work orders depended on the who its client was, most of

which included banks, servicers, asset and real estate portfolio managers etc.

17.

Through work orders, Plaintiffs and other class members performed property preservation work, which included re-key, lock-out, board-up, trash-out, winterization, and other services, as required. Plaintiffs also performed maintenance work, which included landscape, janitorial, maid services, winterization, and other miscellaneous services. FAS also required Plaintiffs and other class members to remove significant amounts of debris from the properties

In 2009 I made this connection and was told I was crazy by the Offender members of NAMFS. In Hurst v Buczek Filed on 5/2/2012 the courts determined that hurst was in fact an Employee of Buczek’s and that Buczek had no standing in California since they were not properly licensed to conduct business in the state of California.

While we do not know the details at this time of the settlement you can bet this…Just as the Buczeks were left out to dry by the Industry Leader NAMFS so will FAS. The time has now come for the Offender members to Pay the Piper.

I will reiterate here…We as small business owners owe these people NOTHING. They have abused Labor for the past 10 years and now it is getting even worse…

This morning in a consultation I showed a client how he was going to net $7.60 for 3.5 hours travel time, 4 hours of work, fuel costs for the 200 miles he was going to travel…to mow lawns for the new reduced fees Altisource is stuffing down everyone throats. I also explained to the client that a true Independent Contractor bills for their services and is not told what they will be paid. I also explained that an Independent Contractor does need training or education in the field…

LABOR WAKE THE F************* UP

The banks have made their monies and now they are wanting you, at your expense, to prepare these homes for resale so once again they can generate grotesque profits at the expense of Labor. Who do you think they got the money from to become Too Big To Fail??? LABOR.

Now we stopped the order mill cycle of BS a long time ago.

This is today’s message to labor…One week…that is all it would take for Management…NAMFS Offender Members…to wake up and read the writing on the wall…

You are SUPPOSED TO BE INDEPENDENT CONTRACTORS…you may go on vacation any time you wish….Why not take next week off??? Oh that’s right the PPI doesn’t have Independent Contractors…The PPI has SCARED EMPLACTORS…

I’m sure the settlement will include some sort of disclosure, just as the Buczek case t did the Brian Drain was held to so no one really knew what the settlement term were.  However, when a company reaches a settlement…they know they are fighting a losing battle, whether the case is sealed or not FAS has lost this issue. This means that everyone in the PPI is not an Independent Contractor. Hope you’ve kept you records….

Documents for your review

Complaint

FAS Response

Order Certifying Class

Exclusion Request Form

You can bet we will be following this as things start to come to a head on this troubling issue throughout the Property Preservation Industry.

So are you an Independent Contractor or some scared Emplactor afraid that if you stand up you’ll be fired?

PS: Sorry Larry and Mary…told you this would come back to bite you in the ass….you protected your employee for our litigation but you cannot save FAS from this…..

Until Next Time

Happy Gardening.

Written By Aaron Aveeiro

Photograph Aaron Aveiro

Opinions expressed do not reflect those of Aladay LLC ownership

PPI Breaking NEWS!!!!! Bleach and Kilz

Please help assist in getting the word out…Bleach and Kilz is not a remedy…

HAZMAT worrkers PROPERLY treating Black Mold
HAZMAT worrkers PROPERLY treating Black Mold

Aladay LLC Media has been asked to assist in getting the word out in regards to the following investigation that is currently on going and involves Bleach and Kilz and probably over 100,000 people throughout the Property Preservation Industry.

If you have been involved in the PPI in the past 6 years then you know all about the Bleach and Kilz Procedure for Mold. Seems that every member of the national Association of Mortgage Filed Services is an Offender Member when it comes to this issue in the PPI. While I’m not sure who the Rocket Scientist was that came up Bleach and place Kilz on one side of a wall that has mold on it and call it Mold Remediation, but Bleach and Kilz is the farthest thing for Mold Remediation. For the past 6 years our company has refused to perform the Bleach and Kilz procedure for any Order Mill.

We are currently assisting Reuters News Wire investigate the issue of Bleach and Kilz as a remedy for Black Mold and any type of mold for that matter in the PPI.

Do have emails, manuals or any type of written instructions from any order mill ordering or directing you to use Bleach and Kilz on Mold??

Or have you been in any “training” or orientation hosted by representatives of an Order Mill that instructed you to use bleach and kilz? The PK management orientation comes to mind as we had a Mold Remediation…LICENSED..company at the PK Management orientation we attended and the guy called him on it and they swept the issue under the rug…However I do know and have received reports that EVERY Order Mill has made Bleach and Kilz a common procedure throughout the PPI, once again placing Labor at risk for liability in the future.

However, if you have been to one of these and are willing to make a written affidavit that you were instructed to use Bleach and Kilz on mold then please contact me….

You can use the Speakpipe feature or email us.

Remember that Bleach and Kilz is not a remedy for mold. This procedure of using Bleach and Kilz is quasi illegal and can cause serious medical issues when someone moves into a foreclosed property that had the Bleach and Kilz Procedure used to remedy a mold issue. The reason the Bleach and Kilz is not considered a remedy for mold is because Bleach and Kilz does not treat the source and Bleach and Kilz does not stop mold from returning. Furthermore Bleach and Kilz only covers up the mold as Bleach and Kilz is strictly a cosmetic procedure. Always remember that should you discover some traces of mold in a property that the mold is ALSO on the INSIDE of the walls and this is why Bleach and Kilz are not considered a remedy for mold.

Remember you stepping forward to stop some of the many injustices pushed upon Labor…

Well Folks…That’s Business….

Business 101…Credit Series, The Lien

Why The Industry Has Payment Problems…

Today we’ll once again talk about the Lien…

Contact us today for your consultation.
Contact us today for your consultation.

This is the final part in our Business 101 Credit Series courtesy Scott G Wolfe over at Zlien. I sincerely hope this series has helped with some of the many questions concerning Liens and how they affect you and you ability to collect on fraudulent business practices. When you look across the horizon the frontier days of Property Preservation Industry Offender Members running the show you’ll see the sun slowly setting. Now is the time to invest in yourselves and come to understand that business isn’t for everyone…

Just me but…this is something that is always a conceivable solution to I don’t have a job…There are people everywhere in the country that if you all came together in your locals you would see that it is very feasible for Companies like Ironclad in Florida to handle volume and still maintain a W-2 workforce. I personalty know it works as I have managed it first hand. Always consider your options and make informed decision when you make your considerations…As they say

That’s Business…..

Why The Industry Has Payment Problems

The previous lesson introduced you to finanical risk and explained why getting paid is such a problem in the industry. Now, we turn to our final lesson (so sad) and explore what solutions exist for savvy credit professionals to offset and overcome the risk.

This is very exciting.  It’s time to tie the first ten lessons together and give you a full overview of what actually causes non-payment and slow payment in the industry, and then to address how some companies overcome the challenges…and others don’t.

Are you ready?

Here are the final two lessons:

  1. Financial Risk & Why You Are Waiting For Payment
  2. The Construction Credit Arsenal To Get Paid Everytime

Security, Security, Security

We started this course by analyzing standard credit management practices and policies, and then we explored the construction industry-specific legal issues you’ll confront as a credit professional. This all built up to the financial risk paradigm in the industry, which puts your company’s neck on the line.

There are real reasons why payments to you are delayed, and why sometimes, payments are difficult to get. But, will more phone calls and emails work? Is waiting for the stars to align really acceptable to your bottom line?

Security rights is a solution for the construction industry. This refers to the preservation and enforcement of mechanics lien, bond claim, and stop notice rights.

The Security Funnel

zlien-methodology1

Placing your projects through a security funnel, above illustrated, will have three primary benefits for your company:

  1. Predictable Cash Flow: Invoices will get paid on time consistently, because your invoices are priortized;
  2. Less Uncollected Debt: You’ll recover more overall, because you’ll have security
  3. Higher Sales: With a higher risk tolerance, you can empower your sales team to sign riskier clients

Let’s now quickly explore what your security right is and the lifecycle of your security rights.

Part I:  What Are Your Lien Rights?

We use the term “lien” and “mechanics lien” pretty loosely throughout this email series. That is on purpose since the term “lien” can refer to over 100 separately named remedies. However, it’s time to get a bit more specific.

To determine what type of “lien rights” you have you must determine the type of construction project you’re furnishing to or working on. This can become tricky in itself, as we’ve explained in “Is My Project Private, Federal, State…Or Something Different?

Once you know your project type, you’ll have the following rights:

Private Projects, Mechanics Lien:  On private construction projects you’ll typically have a mechanics lien right. This is a right to file a claim against the project job site itself, and use the job site’s property as collateral for your payment.

State Projects, Bond Claim: On a state, county, city, or municipal project, you’ll have the right to file a claim against the bond that is held by the general contractor. Unlike private construction, where the claim is against the property, public construction does not allow foreclosure of public property for debts, and accordingly, a bond is put in place of the job site.  The bond is your company’s collateral for payment.

Federal Projects, Miller Act Claim: Finally, on a federal project, you’ll have a right to a bond claim against the bond held by the general contractor, just like on a state project. The difference is merely terminology, as these are referred to as “Miller Act Claims,” named after the law regulating them.

Part II:  The Life Of A Lien Right

Now that you know what you have the right to file it’s now important to understand the procedures you must follow to actually preserves and enforce your rights. This is what we refer to as the “Life of a Lien.”

You can break down the “Life of a Lien” into the following three stages:

  1. Preservation: Nearly every situation will require you to send some type of “preservation notice” to preserve your right to later file a lien, bond or miller act claim. These notices, called preliminary notices or notices to owner, must be sent to certain parties at the very start of your furnishing.
  2. Perfect: If you are unpaid by a client or customer you’ll need to move forward to perfect your lien, bond or miller act claim.  This is done by filing some sort of claim statement or instrument with the appropriate agency.  It is typically required within a certain period of time from when you last furnished to the project.
  3. Enforce:  If your lien, bond or miller act claim is not paid by the party upon receipt, the law will require that you take a litigation action to “enforce” the claim. This means filing a lawsuit to foreclose on the same.  This is usually required within a certain period of time from when the claim was originally filed.

Related & Helpful Articles on the Web

17 Ways A Mechanics Lien Works To Get You Paid

How exactly does a mechanics lien work to get your company paid? This presentation explores 17 different effects created by a mechanics lien that works to free up cash in your favor.

Read more

Reinvent Your Receivables

Owners, lenders, and general contracts keep track of who leverages security, and who doesn’t. Consistently protecting and monitoring your security rights will prioritize your receivables, increase the speed of payments, and give your company consistent A/R performance.

Read More

admin-7About Scott Wolfe Jr

Scott Wolfe Jr. is the CEO of zlien, a company that provides software and services to help building material supply and construction companies reduce their credit risk and default receivables through the management of mechanics lien and bond claim compliance. He is also the founding author of the Construction Finance Journal, a leading online publication about liens, security instruments and getting paid on every account. Scott is a licensed attorney in six states with extensive experience in corporate credit management and collections law, with a specific emphasis on utilizing mechanic liens, UCC filings and other security instruments to protect and manage receivables. You can connect with him via Twitter,LinkedIn and Google+.

Do you have a Business 101 concept??? Contact us today to utilize our Guest Writer feature…We also do opinion stuff in case you may have one of those!!!!!

Until Next Time

Happy Gardening

MCS Delay of Payments…A Conspiracy???

Stop and think for a minute…Management has to make the decission…

 

close your eyes....here comes Management
close your eyes….here comes Management

Close your eyes as here comes management yet again, and once again Labor suffers at the hands of an Offender Member of the National Association of Mortgage Field Services.

Let us talk Conspiracy and just how deep it can be when we speak of non-payment issues or even a delay in your payments.

Something many people do not know is the fact that if you have enough money in a business account, oh just for fun let us say a million dollars, you collect interest on said balance…Stop and think about this for a minute.

This past Weekend well as we finish this Holiday Weekend celebrating America’s Independence, we find Caroline Reeves of MCS is running a muck having a great time while all the Vendors…and you’ll notice I do not say Contractors here. As what MCS has done is make everyone an employee with the Aspen Grove Solutions fiasco…did not get paid. While some may not see the harm in this…I personally disagree. Someone had to discuss this decision therefore making this delay in payments a violation of the contract, a conspiracy.

Now while I have been saying everyone in the Property Preservation Industry are Emplactors…a term I coined two years ago as everyone in the PPI is an Employee incorrectly classified as an Independent Contractor. Now for one minute stop and this about a million dollars..and this is not a far fetched amount of money…if MCS has 1,000 Emplactors that they owe $1,000.00 this equals $1,000,000.00. and they decide with a conscience decision…and make no mistake about this…someone at MCS discussed this payment delay before going out and starting their three day weekend this past Thursday afternoon. Someone had to authorize this questionable decision and action. Once again making this a conspiracy..

Now color me purple and call me crazy but I honestly believe if you are using my monies to collect interest then I should be entitled to some of said monies…to understand exactly what I refer to check here

Now granted when you break it down that 1,000 Emplactors that are owed $1,000.00 would only be responsible for about $30 apiece…times 1,000…well MCS just got a little shot in the arm to the tune of 30k for the slight mishap and delay in payments this weekend…and depending on how the account is set up…that 30k could be PER DAY…just something to think about when they want you to shut up and do what you’re told and wait like good little lap dogs for your money. The money you earned by placing your resource into play. Your Labor, your finances, yes you placed those into play so MCS can be paid before they pay you…once again conversation equals conspiracy.

On another Breaking Story in the PPI…Bowerman v. FAS on the Employee/ Independent Contractor issue. There has been a settlement reached. This means that once again just like in the Berghorst, Buczek and all the other court cases the settlement details will be held under seal. This is how the NAMFS Regime can continue to do what they wish with YOUR monies. In the Case Hurst v. Buczek the courts ruled that Hurst was an employee. Now why everyone in the industry has not made the move to check these unchecked Offender Members of NAMFS that continually wish to steel from them is beyond me.

I will be speaking to someone on this issue this week and will definitely be relaying this information to everyone. One of the issues I constantly hear about a Mom & Pop shop not going after their money is the probably the most ignorant train of thought one can have… If I file on them they won’t send me any more work…HEY STUPIDS!!!!! You’re not being paid now so why spend more monies to complete work for them????

That has to be to most ridiculous justification NOT to do the right thing for your business and an entire industry…

Believe this…Had people started filing liens on properties 6 years ago when the Offender Members blew up the industry I would not be writing this article today. What is it that nobody wants to comprehend about the fact the properties do not belong to those not paying you for your services. Start placing a lien on properties…and the banks start having a serious problem…

The problem is they cannot sell them and that in the end is the goal…get the properties back on the market as fast as possible for as little as possible. Has everyone forgotten how America got into this mess??? TOO BIG TO FAIL and Reaganomics…once again a conspiracy, in this case never prosecuted by the government raising the question, How much in political influence did the “Too Big To Fail” folks pony up???

You did not parlay Toxic Mortgages, the banks did, and the executives that put the scam together got million dollar bonuses for their efforts to dupe the country and crash the economy. Then they went out and found a bunch of puppets to pull their strings and get what they want.

Eric Miller has become the Master Puppeteer with all his sound bites. Let’s not forget that Miller has been in the press for the past 2.5 years collecting over 120k per year while making all the ills of the PPI Labor’s fault.

Least we forget this statement in Housing Wire

“Our goal is to assist our NAMFS members meet the increasing regulatory requirements and costs associated with background screening and we are excited about SterlingBackcheck’s participation,” said Eric Miller, executive director of NAMFS. “The industry standard background check solution obtainable from Aspen iRecord and now supported by SterlingBackcheck allows our members to secure one standardized and compliant background check and reuse it over and over again with multiple organizations.”

He has done a pretty good job with the Propaganda Machine when they brought an experienced Spin Doctor…$8 dollar haircut boy Fatica into the industry to clean up SEAS…which went belly up placing Kim Fatica into the conspiracy fold. You see all Fatica did was prolong something that was inevitable for the failed business model of outsourcing…subbing…Many may remember that it was SEAS that a group Subbers List- No Pay Companies over on LinkedIn. At the same time Fatica attempted to steal the Education programming that was developed and accredited by John Allen of NAARPI International for the Hummel Platt QC University. Remember that NAMFS has no accreditation to their education modules they attempted to force down labor’s throat, essentially make them a “for profit” organization. It was probably Fatica that put Getty Images on me when I used a photo of baby ducks for the Quack Club…he’s the only one sharp enough to put that together…Again all this had discussions thus making everything and everyone’s actions a conspiracy.

Now that is all just me rambling…and I will let you come to your own conclusions…Unlike the Myra and Meg show I do have merit to what I say. In addition the Lunatic in the Bunker has serious merit to what is being said. In contrast the Myra and Meg show is nothing but censorship and rhetoric to protect a failed business model of subbing…One only has to wonder how long it will be before we start seeing Meg Barnes in the Non-Payment category. There have already been rumblings about some slow pay issues. Of course, since Meg’s company is not solvent she passes the blame UP the food chain. Have you ever noticed that is always someone else’s fault when you don’t get paid from those you complete work for??? Never their fault…This has to be the only industry that allows insolvent companies to conduct millions of dollars worth of business every day. On a side note…I left the Group and received email from the group owner for three days then there was this thread…notice you only see the two people commenting on this…there is over 3,000 member in this group that only has two people bitching about my rantings…what neither one of the these dingbat women have said is that I have lied in my “rantings”.  If anyone would like to see the emails from Mrya where she begs me to saty in the group because I am active and have something worthwhile to say I’ll be happy to provide them…I’m guessing the the ol’ leather face has completely forgotten about those…

Folks you must remember this…Your contract is with your client…not your client’s client. So when you do not get paid it is your clients fault not your client’s client, or in some cases your client’s client’s client…so when you lien a property you place three companies at risk…How long do you think the banks will allow this to continue???

Just food for thought as we start the second half of 2015…

Until Next Time

Happy Gardening

Written By Aaron Aveiro

Photo Courtesy Google Images

Opinions Expressed do not reflect those of Aladay LLC Ownership