Attorney Wes Carter Answers 4 Legal Questions from the Thrive Nation

Audio Transcription

You have questions. America’s number one business coach has answers. It’s your brought up from Minnesota. Here’s another edition of ask clay. Anything on the thrive time business coach radio show?

No.

Today’s audio connection may be a little rough. Are you calling us from Antarctica? Are you calling us from the North Pole, the South Pole, Siberia, North Korea, and exotic island. Where are you calling us from?

Tulsa and Oklahoma and so, and an AP from the staging, the old [inaudible]. I am leaving ms baby headed back even very metro sites and Tulsa.

All right, so we’re joined here with Wes Carter, my attorney of choice. Uh, he works with a group called winters and King, a law firm called winters and king that throughout the years has represented TD Jakes, Joel Osteen, pastor Craig Rochelle, Pastor Joyce Meyers, and thousands of businesses all throughout the planet. Check them out [email protected]. A lot of people are confused as to what to call you guys. Should they call you attorneys? Should they call you lawyers? Should they call you attorneys at law? What’s the proper nomenclature?

Uh, most of us don’t really care. Attorney, your lawyer is fine. We get called a lot worse. So I turn your lawyer will be perfectly happy with.

Okay, well we have a four legal eagle questions from the thrive nation here and I know you’re driving here so I know you get your hands at 10 and two, you’re completely focused on the road ahead and uh, but I want to ask these questions and then you kind of can you have as much time or as a it as you need to explain the, the answer here. So here we go. One of our clients that’s a client that we work with, these guys at onyx imaging, um, they are a growing company and they’re saying whenever you know, as they grow. Do you, is there a best practice system in place for determining who’s a contractor and who was an employee?

Yeah. Let me, I’ll start with mine. Disclaimer here that you need to seek out your own legal eagle advice and the awesome podcasts is, it should not be legal eagle advice for you. You need to have an attorney that you talked to. But generally speaking, anything factors like a list of criteria that the state and eventually the IRS, you have to look at it from both sides. We’ll use to it turned into someone who is a contractor or an employee and it’s very important to quantify those markers. Getting a in trouble if you do it wrong. Um, so you know, generally speaking, a lot of the criteria that they’re using are related too much. You have a direction you have that you give to the employees and you know, you’re looking at most of the time if you’re going to air, you want to err on the side of the coin business.

You want to avoid the trap of classifying everyone is Tom track. As soon as you start telling people when to show up how to do their job, you know, you give them tools to do the job with any of those items start to come into play. You need to seriously be looking at classifying those workers as employees rather than contractors. Typically a contractor or someone you say, here’s the job, go do a good job. And I support and guidance in that. Most of the time contractors are open to work for multiple different people. You know, they’re doing jobs for different, uh, people that hire them, not one employee or you want to pull your, and also the factors, you know, the law assumes that it’s on a matter, it’s a short term relationship. There are exceptions, but the liner, the relationship goes on. The more likely it is that most people are going to be treated as employees.

Okay. So let me make sure I understand this. You’re saying if you are in doubt, you’re saying is this person an employee or a contract? You’re saying when in doubt you should, it’s it’s wise to make them an employee when you’re in doubt.

Yeah, it’s a close call. The safer thing I some treat them as an employee. What happened with the contractor, as many of us know, if they make $500 a week, they get um, with an employee you are doing with holding and you’re subject to additional rules for overtime and minimum wage and different roles that apply to employees that don’t contract with. So if you pay a contractor a flat wage for a job and he really should have been an employee, you might have violated overtime or a minimum wage or withholding that we’ll come back to bite you. If a wage claim arises or that contractor is unhappy or a number of things and the beam from even the state radar or the IRS is radar and it can lead to quite a bit of liability.

Nope. I have written down a few variables for a few differentiators between an employee and a contractor. And I’m gonna, I’m gonna read them off here for you and now I’d like for you to kind of break them down for us if you can. Um, you know, an employee has a set schedule, whereas it contractor, um, can kind of set their own schedule and employee has their tools provided for them, their workspace and their tools provided for them by their employer. Whereas a contractor as a general rule supplies their own tools and employee is a general rule. Um, doesn’t have multiple sources of income. You know, they’re not getting a 15 to 20 different clients all paying them equal amounts, right? Uh, they’re, they’re, they’re typically getting most of their income from one source. Is there, are there, are there other variables where you would say these are variables that definitely indicate that somebody is an employee and is an, an is not a contractor.

Even if they’re using their own tools, even if they don’t have a set schedule, if you’re micromanaging them and telling them exactly how you want the job done on a, on a micro level, then it’s likely not a contractor relationship. So let’s say you know, a contractor, you say, I want you to come fix my roof, do a good job. Um, if you bring in a contractor and you told her he pays the type of needles you have to use, here’s some type of shingle would be after you. I want you to space these out this far apart, you know, and you’re providing that service to a third party so they, they’re hard fools were too much control is always going to open the door to whether or not that individual should be an employee. And that’s why it’s important to understand that when you talk about these factors, none of them are the end of the story. So one is present or one is not present, doesn’t mean that it’s automatically an employee or a contractor. It’s like you have two columns and you’re checking box on a scale, but trying to figure out if they’re an employee or contractor. That kind of a convoluted calculation that we tried to make. That’s why it’s important to have someone that’s familiar with the rules help you through that process.

They have a business out there that is doing what I would call aggressive search engine optimization. Okay. Aggressive. Uh, some would call it not. Okay. Search engine optimization. Some might call it shady. So as an example, there’s a business out there that I’m making up the name of the company, but this is an actual, a listener who had this question. Let’s say the name of my company was forest, uh, landscaping forest landscape. And this is not the real scenario west, but this is just an example. If the name of my company was forest landscaping, it seems like their competitor is optimizing their website. So when you type in forest landscape beat, the competitor comes up, you know what I mean? The competitor is optimizing for the name of the other company. Is that legal eagle wes?

There is, it feels like a trademark issue. If they are using something that you’ve trademarked to, you know, draw business to their, the main, uh, by using metal tags or keywords or things like Google ads, then there’s definitely something there and you can do. And if they’re using a third party fought for my Google, usually you can resolve that directly with the third party platform by making a trademark infringement claim. Now, if they’re commonly used terms, so the name of your business is, you know, some of them. So city landscaping, um, those terms are so generic that they’re difficult to protect. And so again, it down to what words exactly if they are using to try to kind of still traffic from your website. Um, and that’s, and then also the other issue is if there are impersonating you that is usable, actionable. So it’s not just that they’re using keywords or metatags that you would use, but they’re pretending to be your business. And then as soon as you click on it, it actually goes to a different business. That is usually something that action will the unfair trade practice. So you know, if they’re just using your keywords, it’s probably nothing illegal there. By that they’re using their trademarks or they’re actually impersonated in your business where it’s done in a way where the consumers being speeds into to their site, they’re not very well, may be something that you can take. legal eagle action.

All right, now here’s another question. There is a thriver out there. We have a lot of thrivers out there who are involved in the medical world. The medical space, Wes, Whoa, whoa. Got Emotional there. West Kennel coughed up here. Okay, so we have a thriver out there who’s a chiropractor and they want to offer a no brainer a deal that is very, very good. And there are chiropractors out there who are members of the thrive nation who are offering a deal right now where they’re saying, hey, your first appointment, I’ll give you a free exam and a free first adjustment. So again, we have chiropractors out there listening to the show who are offering right now who people who are not clients of ours, they’re just going, this is what I offer. I offer a free exam and a free first adjustment. That’s what I do. And then we have another chiropractor asking right now, is it legal eagle to offer a free exam and a free adjustment for a first time patient?

A lot is going to depend on what state, which has very complex and any kind of financial incentive, you’re referring patients to a medical provider or you have to be careful about those. But many times it’s an issue relating to the state rules for your medical boards. So chiropractors and most states are by state law that what you can and can’t do. I may state perspective. There’s a board that governs their ethical rules that they want you to follow in that specific state. So when you’re talking about an average from advertising stand for as long as we don’t lay it into the waters of anti kickback roles and patient referral rules where there’s two of, you know there’s more than one entity involved. Um, most of the time it’s going to be based upon that state rules in the level practitioner. Now there are other rules that you get into it.

They’re accepting insurance. Um, so if you’re accepting insurance payment for these kinds of advances and the chiropractor, then we have to, again, state and federal rules that are going to govern insurance practices. So they come in for a free exam and you’re going to bill an insurance company for that. I didn’t get paid to the insurance companies. There are rules in place and a discount or a free service to me from the mind. So you really have to know exactly what kind of billing practices in our in place and make it your state specific laws for four rules governing board of the medical board and your ethical million. So it’s not really fun to do getting answer and a general answer across the entire country and it’s really going to be very fast with it on that. I’m not specific circumstance

now where’s save two final legal eagle questions for you out there. This is mine. My next question here, we have a thriver out there. It’s based in the eastern half of the United States. They have a music school, a school where they train kids how to play music, a musical instruments, well, they teach them drums, piano, voice lessons. So it’s like, it’s like a music academy, like a music school. If you can picture it in your mind. They’re west and all of the people who work for the school are contractors. They’re question is, do we have too many contractors? Can you have too many contractors working for, for Your Business? Ah, what’s a red flag?

Usually if you have a business medium size, we know you started getting to where you have a number of tractors, zero employees, that’s a red flag and nine because technically it’s possible that they all qualify as contractors and all the services provide as a company I forgot and exclusively three contractors. There’s a good chance that some of those people are misclassified. So even though you might have teachers that come in and do a guitar lesson, you know, or you know, a piano lesson and they’re, they, they truly are contractors. Um, you know, there’s gotta be somebody helping to schedule those lessons that were helping, you know, from a secretarial stay in Florida. It’s usually some employees there that are not going to meet the deaf person. So if anyone ever tells me 100% of my workers are all contractors, that’s usually a red flag. So it’s not that you have too many contractors, but the fact all that you have no factors, um, most likely that’s something that you need to take it. And we evaluate all the physicians. Some of those should really be employee.

You’re saying that if somebody out there says it, all of the people that perform the services or create the products that that company delivers our contractors, that is a red flag and am I hearing you correct?

Yeah. UNIMPOSSIBLE but definitely a red flag and you know you need to really closely examine that. As we mentioned earlier, just the level of liability that you could be walking into. It’s something you want to Damon very closely with an attorney that that can look at the very back, the circumstances, sure that you’re doing it the right way because there’s very stiff penalties for being at the wrong way and so to be invested in, you’re looking at cost benefit and now that investment in time and money that you’re going to make in going through those with an attorney in my opinion, is well worth it. When you look at the potential downside of doing it incorrectly,

you could get thousands of dollars of fines, penalties, back taxes. I would just never get in the crosshairs of the IRS, the IRS did they exist. The Internal Revenue Service exists to make sure that we have enough taxes coming in to a fund. Our government, that’s what they do. And if you’re not paying your fair share, you’re not paying your taxes. Uh, in West, you know, this, a lot of people are trying to scam the government, not pay their taxes. That’s really not the move. That’s not a, that’s not really what you want and where you want to maximize your profits by, uh, screwing over the federal government. And it’s just, it’s just not worth it. So West, if somebody calls you today and they say, I’m looking to, uh, figure out, are these people, contractors or employees? Uh, I have a question about, you know, my competitor is search engine optimization moves. I’ve got a question about, uh, you know, a severance package. Well, how much money would you charge to sit down with someone for a half hour or an hour? Or what kind of costs are our listeners looking at? If they go to winners, they got a winners, king.com and they schedule a one on one consultation with you to have their legal questions answered.

It’s a free consultation for 15 minutes. After that we bill by the hour but we also bill and one 10th of an hour, no minimum hours and trying to make this talk. That tension as possible. Call diverse best case scenario, we can talk and see if it’s something that we can help you with and it’s going to not going to cost you anything and there’s something that’s going to take hours to go through and there may be some charges there, but we do our best to keep those costs down as low as possible for our client.

Now, final question for you as a member of the thrive nation out there that apparently has to let somebody go for whatever reason I have to fire somebody. You have to terminate somebody. Employment, what does a best practice severance letter look like West

every amazing, unique. There could be medical issues involved. There could have been a certain issue that employee raise that sugar whistle blower concern or it could be, you know, it can be fine Morty. If it is your own minority employee on a staff of 50, you probably need to take a pretty close look at the reason for termination. So it’s really something that you can’t use a form letter to an employee. All the terminations were there for, you know, it depends on why you’re terminating then, you know, what documentation do you have that support? The reason, uh, you know, the surrounding issues of, you know, anything that’s going on about employee leading up to the termination. So, you know, they, there are certain things you want to always do as part of a termination. You know, for instance, I always advise my clients to keep those termination meeting short and sweet and to the point.

And you don’t, you know, any termination meeting planners, it’s not being done correctly in my opinion. So, you know, there are certain things that he always want to do and we always wanted to have some sort of documentation leading up to why nearly being terminated. You should always consider, should I be offering a severance agreement in connection with this and with the termination because then the employee has some payment that they’re not entitled to an exchange and get a release from some clients or how to protect you as the employer. But as far as this cookie cutter, here’s how you should do every termination. Anyone who tells you that, I don’t think it’s, it’s blessing by some good advice because every termination you need, you need to examine that specific set of circumstances that specific employees to determine what’s the best way to go about doing that.

Wes, I appreciate you more than you could possibly know and I look forward to seeing you in person next Tuesday, my friend, and by the way, I caught a sneak peek at the website updates we’re doing right now for winters and king in professionally speaking. They are sick.

Oh

yes, I’ll see you next Tuesday. Thank you again for calling in my friend. It’s you’re out there listening today and you don’t have an attorney that you trust. You don’t have a legal eagle advisor like I have readily available. I would encourage you to email your legal questions into info at thrive time, show.com it’s info at thrive time, show.com and we would love to ask Wes Carter the question directly on the next podcast. So again, just email your legal question to info at thrive time, show.com and uh, I’ll get west here on the show and we’ll see if we can answer your question right here on the air. We appreciate you so much for listening to today’s show and as always, we like to end each and every show with up. Boom. So here we go. Three, two, one, boom.

Okay.