2011 AAPL ANNUAL MEETING SPONSORS
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1 2011 AAPL ANNUAL MEETING SPONSORS PLATINUM GOLD SILVER BOSTON SEMINAR GOLF A wholly owned subsidiary of ExxonMobil
2 BOSTON 2011 INDEPENDENT CONTRACTOR OR EMPLOYEE? EVALUATING WHETHER A LANDMAN IS AN INDEPENDENT CONTRACTOR OR AN EMPLOYEE UNDER THE FAIR LABOR STANDARDS ACT NATHANIEL MORAN SNOW FOGEL SPENCE LLP HOUSTON, TEXAS 2
3 OUR OBJECTIVE 3
4 Presentation Goals Fair Labor Standards Act (FLSA) Background Examine Test for Distinguishing an Employee from Independent Contractor Importance of the Determination of Employee vs. Independent Contractor Practical Strategies to ensure you are what you think you are 4
5 BOSTON 2011 FAIR LABOR STANDARDS ACT 5
6 Fair Labor Standards Act 1938 law that establishes standards regarding minimum wage, overtime pay, recordkeeping, and youth employment for employees in the private sector and in federal, state, and local governments. Applies to all workers of a covered enterprise, which is an enterprise (i) engaged in commerce and (ii) whose annual gross volume of sales made or business done is above $500k. 6
7 Fair Labor Standards Act Definition of an employee is any individual employed by an employer. 29 U.S.C. Sec. 203(e)--Huh? An employer is any person acting directly or indirectly in the interest of an employer in relation to an employee U.S.C. Sec. 203(d)--Huh? 7
8 BOSTON 2011 INDEPENDENT CONTRACTOR TEST UNDER FLSA 8
9 Elements (5 th Circuit) 1. Degree of control exercised by the alleged employer 2. Extent of the relative investments of the worker and alleged employer 3. Degree of workers opportunity for profit or loss is determined by the alleged employer 4. Skill and initiative required in performing the job 5. Permanency of the relationship 9
10 FLSA Test--Overview Economic realities test. Contracts not binding on the FLSA Different from the IRS 20-point test (though there is much overlap in concepts) 10
11 IRS Test Applicable? Indeed, although Defendants state that "IRS regulations even suggest that [Plaintiff] should be considered an independent contractor, * * * Defendants have cited no authority whatsoever for the proposition that a classification for income tax purposes has any application to the determination of employee status under the FLSA. Even if this were a factor to be considered, it would not supplant the five-factor factintensive test used to determine whether, as a matter of economic reality, the individuals in question are economically dependent upon the business to which they render their services. Heidingsfelder v. Burk Brokerage, LLC, 2010 U.S. Dist. LEXIS , (E.D. La. Oct. 22, 2010) 11
12 Tests-Other Federal Circuits 6-Part Test Predominant 1. Degree of control exercised by employer 2. Worker s opportunity for profit/loss depending on managerial skill 3. Worker s investment in equipment or material, or employment of other workers 4. Degree of skill required for the work 5. Permanency of the relationship 6. Degree to which worker is integral to the business (or his services rendered are) 12
13 Tests-Other Federal Circuits 4 th Circuit. (SC, NC, WV, VA, MD) See Quinteros v. Sparkle Cleaning, Inc., 2010 U.S. Dist. LEXIS 74924, 8-9 (D. Md. July 23, 2010) 6 th Circuit (TN, KY, OH, MI) See Lemaster v. Alternative Healthcare Solutions, Inc., 726 F. Supp. 2d 854, 860 (M.D. Tenn. 2010) 7 th Circuit (WI, IN, IL) ISee Kady v. Beg, 2010 U.S. Dist. LEXIS 54646, (S.D. Ind. 2010) 13
14 Tests-Other Federal Circuits 9 th Circuit (AK, AZ, CA, NV, OR, ID, WA, MT, HI, Guam) See Taylor v. Waddell & Reed Inc., 2010 U.S. Dist. LEXIS 81920, 6-8 (S.D. Cal. Aug. 12, 2010) 10 th Circuit (NM, UT, WY, CO, KS, OK) See Saavedra v. Lowe's Home Ctrs., 2010 U.S. Dist. LEXIS 98630, (D.N.M. Sept. 2, 2010) 11 th Circuit (AL, GA, FL) See Tower Ins. Co. v. Rainbow Granite & Marble, Inc., 2010 U.S. Dist. LEXIS 94995, (S.D. Fla. Sept. 13, 2010) 14
15 15
16 Overview of the FLSA Test The five tests are aids tools to be used to gauge the degree of dependence of alleged employees on the business with which they are connected. It is dependence that indicates employee status. Each test must be applied with that ultimate notion in mind Fifth Circuit Court of Appeals Brock v. Mr. W. Fireworks, Inc. (1987) 16
17 Overview of the FLSA Test In assessing the "economic reality" of a particular employment situation, courts consider various factors based on the factual challenges posed by particular cases. Initially, courts must examine the degree of formal control exercised over a worker. --Second Circuit Court of Appeals Lawrence v. Adderly industries (2011) 17
18 BOSTON 2011 FACTOR 1 DEGREE OF CONTROL 18
19 Factor #1: Degree of Control Not determined by what the worker could do, but what the worker in fact does. Does the employer control the manner and means by which meaningful work is performed? Does the putative employee only have discretion over minor regular tasks or actual substantial portions of the job? The more control exercised by the putative employer, the more likely the landman is an employee. 19
20 20
21 Factor #1: Degree of Control For landmen, consider whether the land man is required to: Check in on a daily basis Report to work at a particular time Work a minimum number of hours per day Work from a particular office location Submit paperwork in a particular pre-approved form Have his work reviewed by an employee of supervisor of the alleged employer prior to finalization. 21
22 BOSTON 2011 FACTOR 2 RELATIVE INVESTMENTS OF THE WORKER AND ALLEGED EMPLOYER 22
23 Factor # 2 Relative Investments of the Worker and Alleged Employer Evaluate the worker s independent investment in the business in light of the capital risk that the worker takes in making independent expenditures. In other words, who is fronting the capital costs of the operation? The more costs born by the landman, the more likely he is an independent contractor. 23
24 Factor # 2 Relative Investments of the Worker and Alleged Employer For landmen, consider whether the landman has to provide his own: Computer/Printer Cell phone Automobile General office supplies Office space Who pays for training and education, professional memberships, or insurance costs? Don t get too concerned about cost reimbursement for typical travel expenses. 24
25 BOSTON 2011 FACTOR 3 DEGREE TO WHICH PROFIT IS DETERMINED BY EMPLOYER 25
26 Factor # 3: Degree to Which Profit is Determined by Employer Who is determining the profitability of the landman? Is the putative employee restricted from working for other companies? Does the putative employer control when and how much to work (i.e. set your hours, cap hours) Is the putative employee restricted geographically in his work? 26
27 27
28 Factor # 3: Degree to Which Profit is Determined by Employer Hopkins v. Cornerstone America (5 th Cir. 2008) Company had sales leaders they considered independent contractors, but the Company (i) controlled their sales leads (ii) restricted the sales leaders from selling competing products (iii) defined the sales leaders territories, and (iv) prevented them from owning any other businesses. 5th Circuit said this indicated the sales leaders were employees. Same type issues might arise for a landman. 28
29 BOSTON 2011 FACTOR 4 SKILL AND INITIATIVE REQUIRED TO PERFORM THE JOB 29
30 Factor #4: Skill and Initiative Required to Perform Job This factor focuses on the skill or training required to perform the job, as well as the amount of initiative, judgment, or foresight in the open market competition with others that is required for the success of the claimed independent enterprise. Is the work routine or menial? If a person can show that his ability to exercise initiative will work to his own benefit, he is more likely an independent contractor. 30
31 Factor #4: Skill and Initiative Required to Perform Job Being a successful landman requires training, ability for critical thinking, and attention to detail. Certification process weighs in favor of landman being an independent contractor. The more training you have, and more certifications (CPL, RPL, or RL) the more likely to be an independent contractor. This factor likely leans in favor of being an independent contractor. 31
32 BOSTON 2011 FACTOR 5 PERMANENCY OF THE RELATIONSHIP 32
33 Factor #5: Permanency of the Relationship Examine: Duration of the relationship between the putative employee and employer How dependent is a putative employee on the employer for continued employment? Does the putative employee only do work for a single entity? (Independent contractors usually work for multiple entities) Brock v. Mr. W Fireworks example: Salesman had to give 30 days notice and had worked exclusively for the Company for many years 33
34 Factor #5: Permanency of the Relationship Landman considerations: How long has the relationship been on-going with a particular Company? Has the landman done work for other companies? Or, does it have the right to? Is there contractual language binding the landman to a particular Company or requiring long notice to quit? Freedom and independence in who the landman works for is important. Being hired on an assignment-specific or work order basis is a good way to go. 34
35 35
36 Factor #5: Permanency of the Relationship AAPL s Form Contract is a good way to structure your business so as to be considered an independent contractor MasterLandServicesContract.pdf Contract language is not binding on a court s determination, but should be considered. 36
37 BOSTON 2011 FACTOR 6 DEGREE TO WHICH WORKER IS INTEGRAL 37
38 Factor #6: Degree to Which the Worker (and his work) is Integral to the Putative Employer Straight Forward Factor It would be the extreme exception to the rule that the work done by landman is not integral to the putative employer s business (especially in a broker-landman situation) Leans in favor of an employer-employee relationship b/c landman is integral. 38
39 BOSTON 2011 RAMIFICATIONS AND SUGGESTIONS 39
40 Why Care? For the Putative Employer (Company) Could be subject to a lawsuit under the FLSA for overtime pay for more than 40 hours worked going back potentially three years. FLSA provides for recovery of attorneys fees for putative employee if they are successful. For the Putative Employee (Landman) Tax implications (because this determination could spill over to the IRS test). Future work within the industry may be suspect if you challenge the industry norm and contractual language to the contrary. 40
41 41
42 Suggestions to Stay Independent Landman should provide his own Office Space /Supplies Computers/Software Cell Phone Automobile Landman should not be restricted from working for other companies, and not be restricted in geography. Landman should exercise control over the means by which he accomplishes the job. 42
43 Suggestions to Stay Independent Landman should not maintain a singular, long-term relationship with just one Company. Landman should pay for his own training, education, and certifications. Landman should not be receiving benefits of an employee paid time off, paid vacation, end-of-the year bonuses. Landman should not be using Company letterhead or business cards with the Company logo. 43
44 Suggestions to Stay Independent Landman should not be acting in a managerial capacity (i.e. getting paid to manage personnel rather than actually doing landman/title work). Landman should be paid on a per job basis, rather than like a regular employee (i.e. regardless of what an employee accomplishes in a time period, he gets paid the same). Landman should utilize a form like what the AAPL has on its website when dealing with the Company. Landman could form his own business entity. 44
45 Conclusion Remember It is the economic reality of the situation that finally determines whether a landman is an employee or an independent contractor No single factor is determinative. It is the totality of the circumstances. Use the smell test. Are you dependent or independent? 45
46 QUESTIONS? Nathaniel Moran Snow Fogel Spence, LLP 46
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