Category Archives: overtime requirements

The NAMFS Membership and Labor

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Organics Admin

COO at Aladay LLC
Organic Farmer, Property Preservation Specialist and Custom Glass & Wood Worker. Blogger extraordinaire...
Organics Admin
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On The Eve of Fraud Fest is that knees I hear knocking???

They will extract their pound of flesh....
They will extract their pound of flesh….

As the cobwebs start to clear the eyes and the aroma of the coffee swirls around the sleepy little town of Stow Ohio this morning you’ll find that the poppycock has started to hit the fan over the IRS filing for the National Association of Mortgage Field Services, (NAMFS). One has to really wonder why a 501c6 is not actually in compliance with the IRS rules governing 501c6’s.

Now I would like to highlight a question this morning. If you and I have to be “In Compliance” with all laws, rules of the Mortgage Filed Service Industry, state regulations and licensing and insurance regulations, why doesn’t NAMFS and it’s membership?

Why is it that all the members demand that you are in compliance yet at the very same time they are not in compliance? What is so confusing is the fact that we see Labor getting bent over with no grease and yet the warm and fuzzy folk are telling us it’s OK…we have members of labor joining in the Kumbaya singing and praises of NAMFS as their annual Fraud Fest is about to commence.

In addition to this fiasco of regulations violations we have several Employee/Independent Contractor issues working their way through the courts. With Members “settling” cases as I type this morning we have something else that the NAMFS members have to deal with.

The National Labor relations board is about to slap the MFS industry across the room, here’s what I’m talking about…

The National Labor Relations Board (NLRB) is poised to make several decisions that could significantly affect your workplace. Its agenda is unabashedly activist. Its general counsel Richard Griffin, Jr. (who, interestingly, is the former general counsel of the International Union of Operating Engineers) has published advice memoranda that confirm the NLRB’s prosecutorial agenda, including:

  • Increasing scrutiny and involvement in the non-union workplace

  • Expediting the process for conducting union representation elections

  • Broadening a successor company’s obligation to bargain

  • Voiding arbitration agreements with class action prohibitions

  • Restricting confidentiality rules during employer investigations

  • Expanding rights to representation in the nonunion workplace

  • Controlling employer handbooks and policies concerning at-will employment, confidentiality, workplace decorum, social media, and employee use of employer email systems

Notice the Highlighted phrase…that was me….

Simple question this morning….to all that claim they are doing something for Labor working from the Inside of NAMFS, oh and let’s not leave Eric Miller out…heaven forbid I don’t get him his five minutes this morning. Wouldn’t it have been easier to bring Labor to the table five years ago when we asked to be invited???

I’m sure as the legal troubles mount there is a lot of second and third guessing going on in Stow. Or perhaps they are in New Orleans this morning attempting to strategerize a new scam to perpetuate on Labor?

What I would like to know is whom will be the lackey to provide Lip Service to Labor when the fraud fest is over??? Who will bring the news from the NAMFS event to Labor?

Here is what I do not understand. People claim they want change, they claim you catch more flies with honey than with vinegar. They claim they are working from the inside to affect change. Yet the entire time the industry at the hands of their fellow members of NAMFS have gotten worse. Yet the big dogs say this…

The big ones are. Bank of America’s servicing profits totaled nearly $3.8 billion last year, with its revenue for servicing fees and related income rising about 6 percent to more than $7 billion. Wells Fargo’s servicing-fee income rose 10 percent to $4.6 billion, even after subtracting the cost of unreimbursed default work.

“This is a very profitable business for us,” Wells [Fargo] chief financial officer, Timothy J. Sloan, told Wall Street analysts in April.

EXCUSE ME?????? Yes that is a member of NAMFS. And you can’t get paid a fee that compensates you costs of doing business??? When will Labor wake up and say no to this type of conducting business?

As the news of the IRS 990 filing of NAMFS hits the streets with some very disturbing violations of the IRS 501c6 rules many Emplactors are hitting the streets this morning to toe the line for the second and third tier subbing members of NAMFS. Yes they are running out the doors right now to meet the “turn times” and “due dates” on the work orders that have explicit instructions and directions on what materials and tool to use and how to photograph the service thus making them an employee.

I will say this once again…it is not one or two issues that will determine the Independent Contractor Employee issue it is the totality of the “Direction and Control” that the order mill exerts over the Emplactor.

For anyone that feels there is no direction and control exerted over them via the NAMFS membership they need their heads examined. I have been saying since 2009 that the industry is an employee scenario. The Lunatic in the mountain has brought this issue to the table manytimes and has predicted the decision of the courts more than once yet our screams from the mountain tops fall on the deaf ears of Labor. The fact that Labor will not come together in the Property preservation industry is a testament to the fact they are employees as any self respecting company providing labor to an industry would have said what Aladay LLC said 5 years ago…

We bill for our services according to our costs of doing business. If this is unacceptable then we don’t do business with you… Now many of will say this is cutting your nose off to spite your face. However, I call it Business. Yes that is correct, That’s Business.

When you show a company that you have to pay $17.65 to dump one cubic yard of debris and they want to pay you $18.00 for that cubic yard of debris???

Well sorry that is crap. When you have to provide 12-14 man hours performing a janitorial to the specs for $90.00??? Some of you may say we do it…I have spoken to several companies that did this. They would accept $350 for the flat fee and provide all the service,,,on a limited amount of time…Yes they would provide a 4 man crew and give 4 hours to the property. For a total of 16 man hours…None of them are in business today as they went broke. But hey they were part of the “Team”. Funny, the other part of the team went to the bank while the part of the team completing services went to bankruptcy court.

Yet none of the members of Labor that have a lick of sense will stop and say no. Of course not they have to work…They have to be an Emplactor to the dictators of the Mortgage Field Service industry. They have to be in compliance with rules that do not apply to them and instead of coming together to show a united front they hide behind the curtain waiting for their pittance form the mailman.

When these folks don’t get paid they want to cry out for help and beg those of us whom have said screw Miller and Company and the BS. Yes they come crying asking for help. How long do you think people will continue to offer assistance for free?

I have on numerous occasions requested an interview from Eric Miller. He can go in social media and in the press making Labor out to be the ills of the Property preservation industry. Sort of like Monsanto making everything wrong with their products the fault of the farmer using their products.

While some may feel that I have been vindicated as what I have been saying for the past 5 years, I really gather no solace from this. This mess could have been avoided many years ago by simply asking Labor to come to the table to negotiate and provide solid information to management. No that was not anything The Executive Director wanted as that would mean less monies for the membership and the kickbacks would stop. Now that is just my humble opinion. But I have to ask everyone…

Why would anyone continue down a path that involves supervising crime on a daily basis if there were not kickbacks going on? Money has always been the “Root of all Evil”…if you’re a Good fearing people…which  many of the members claim to be, they place their trust in their faith. Not sure how that is working for them as I do not see any changes that benefit labor…no in fact thing are worse today than they were 5 years ago all the while the Banks, those responsible for the mess called “The Foreclosure Crisis” are raking in grotesque profits at the expense of Labor..

When I travel our coverage area cultivating new clients I see many properties in disarray and the work seems to be backing up because those of us that have had the guts to stand up and be counted refuse to lose revenues for these scum bucket members of NAMFS…No those of us covering the rural areas of Northern Nevada know the scum bucket members cannot find someone else to do the work. We have all said no to these people.

The reality is this…if change is going to come then Labor must pull their collective head out their bum and say no…actually they can continue to be gutless and hide in the closet because…

With President Obama’s appointees filling all five seats at the NLRB, the betting odds prohibitively favor a decision that will abandon the historic test for joint employers in favor of a test that sweeps most outsourcing arrangements into joint employment.

While I feel Mr. Obama is a bold face liar because of what he said in regards to GMO’s prior to being elected, I do believe he will come through for Labor on this issue. One must keep in mind here that when banks  use an Order Mill…ie; AFAS, MCS, MSI, Altisource et.al. that is OUTSOURCING….

I guess this leaves us with the question…When will an attorney attach Miller to a lawsuit in the PPI? When will the BOD and Miller be gifted with an accessory charge like they deserve?

Until Next Time

Happy Gardening

Written by Aaron Aveiro

Phootograph courtesy Google Images

Opinions do not reflect those of of Aladay LLC ownershp

Business 101: Internship Programs Under The Fair Labor Standards Act

Organics Admin
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Organics Admin

COO at Aladay LLC
Organic Farmer, Property Preservation Specialist and Custom Glass & Wood Worker. Blogger extraordinaire...
Organics Admin
Follow Me!!

Right for your Company??? Be sure you understand the rules.

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This past week I had three consultations and each client asked the same question. Can I use interns to help offset labor costs? Well the answer is simple. Yes you can if your company offers an Intern Program.

Many companies have this type of program to assist Graduate Students and Under Grad Students. Like everything in Business there are rules and guidelines for Interns. I have contacted the Department of Labor, (DOL) and they provided the following information. One of the biggest issues plaguing the Property Preservation industry is “Ethics.

There’s a difference between unethical and illegal business practices. In some cases, unethical business practices are the reason there are laws that make those particularly scummy things illegal. Many times, those frowned-upon actions fall into more of a gray area. And sometimes, changes in culture or complaints about ongoing unethical treatment cause certain practices to shift from being just unsavory to actually against the law.

Some of those changes have brought about shifts in entire industries. Other times, it’s brought shady business deals of well-known companies into the light. And in some cases, the problems are so large that they cost employees millions of dollars each year.

Will the DOL make some determinations that will change the PPI???

U.S. Department of Labor
Wage and Hour Division
(April 2010)
Fact Sheet #71: Internship Programs Under The Fair Labor Standards Act
This fact sheet provides general information to help determine whether interns must be paid the minimum wage and overtime under the Fair Labor Standards Act for the services that they provide to “for-profit” private sector employers.
Background
The Fair Labor Standards Act (FLSA) defines the term “employ” very broadly as including to “suffer or permit to work.” Covered and non-exempt individuals who are “suffered or permitted” to work must be compensated under the law for the services they perform for an employer. Internships in the “for-profit” private sector will most often be viewed as employment, unless the test described below relating to trainees is met. Interns in the “for-profit” private sector who qualify as employees rather than trainees typically must be paid at least the minimum wage and overtime compensation for hours worked over forty in a workweek.
The Test For Unpaid Interns
There are some circumstances under which individuals who participate in “for-profit” private sector internships or training programs may do so without compensation. The Supreme Court has held that the term “suffer or permit to work” cannot be interpreted so as to make a person whose work serves only his or her own interest an employee of another who provides aid or instruction. This may apply to interns who receive training for their own educational benefit if the training meets certain criteria. The determination of whether an internship or training program meets this exclusion depends upon all of the facts and circumstances of each such program.

The following six criteria must be applied when making this determination:
1.The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
2.The internship experience is for the benefit of the intern;
3.The intern does not displace regular employees, but works under close supervision of existing staff;
4.The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
5.The intern is not necessarily entitled to a job at the conclusion of the internship; and
6.The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
If all of the factors listed above are met, an employment relationship does not exist under the FLSA, and the Act’s minimum wage and overtime provisions do not apply to the intern. This exclusion from the definition of employment is necessarily quite narrow because the FLSA’s definition of “employ” is very broad. Some of the most commonly discussed factors for “for-profit” private sector internship programs are considered below.

Similar To An Education Environment And The Primary Beneficiary Of The Activity
In general, the more an internship program is structured around a classroom or academic experience as opposed to the employer’s actual operations, the more likely the internship will be viewed as an extension of the individual’s educational experience (this often occurs where a college or university exercises oversight over the internship program and provides educational credit). The more the internship provides the individual with skills that can be used in multiple employment settings, as opposed to skills particular to one employer’s operation, the more likely the intern would be viewed as receiving training. Under these circumstances the intern does not perform the routine work of the business on a regular and recurring basis, and the business is not dependent upon the work of the intern. On the other hand, if the interns are engaged in the operations of the employer or are performing productive work (for example, filing, performing other clerical work, or assisting customers), then the fact that they may be receiving some benefits in the form of a new skill or improved work habits will not exclude them from the FLSA’s minimum wage and overtime requirements because the employer benefits from the interns’ work.
Displacement And Supervision Issues
If an employer uses interns as substitutes for regular workers or to augment its existing workforce during specific time periods, these interns should be paid at least the minimum wage and overtime compensation for hours worked over forty in a workweek. If the employer would have hired additional employees or required existing staff to work additional hours had the interns not performed the work, then the interns will be viewed as employees and entitled compensation under the FLSA. Conversely, if the employer is providing job shadowing opportunities that allow an intern to learn certain functions under the close and constant supervision of regular employees, but the intern performs no or minimal work, the activity is more likely to be viewed as a bona fide education experience. On the other hand, if the intern receives the same level of supervision as the employer’s regular workforce, this would suggest an employment relationship, rather than training.
Job Entitlement
The internship should be of a fixed duration, established prior to the outset of the internship. Further, unpaid internships generally should not be used by the employer as a trial period for individuals seeking employment at the conclusion of the internship period. If an intern is placed with the employer for a trial period with the expectation that he or she will then be hired on a permanent basis, that individual generally would be considered an employee under the FLSA.
Where to Obtain Additional Information
This publication is for general information and is not to be considered in the same light as official statements of position contained in the regulations.
For additional information, visit our Wage and Hour Division Website: http://www.wagehour.dol.gov and/or call our toll-free information and helpline, available 8 a.m. to 5 p.m. in your time zone, 1-866-4USWAGE (1-866-487-9243).
U.S. Department of Labor Frances Perkins Building 200 Constitution Avenue, NW Washington, DC 20210
1-866-4-USWAGE
TTY: 1-866-487-9243Contact Us
 The FLSA makes a special exception under certain circumstances for individuals who volunteer to perform services for a state or local government agency and for individuals who volunteer for humanitarian purposes for private non-profit food banks. WHD also recognizes an exception for individuals who volunteer their time, freely and without anticipation of compensation for religious, charitable, civic, or humanitarian purposes to non-profit organizations. Unpaid internships in the public sector and for non-profit charitable organizations, where the intern volunteers without expectation of compensation, are generally permissible. WHD is reviewing the need for additional guidance on internships in the public and non-profit sectors.

I hope this will answer some of the questions in regards to using Interns in your operation.

Time will tell if the investigations that are rampping up over Labor issues in the PPI if the industry is in for a serious over-haul. I firmly believe that the PPI hold no true Independent Contractors… just Emplactors afraid of their own shadow.

Until Next Time

Happy Gardening

Written By: Aaron Aveiro and the DOL

Photograph courtesy Google Images