Employment Development Horror Stories Pt 1
I generally have a very professional view of "the other side" whoever the other side might be.
As a business attorney, the other side is often the seller's attorney if I represent a buyer, or the investors' attorney when I represent the company being funded. In these kinds of transactions the other side is usually pretty polite and respectful. Because even though we each want our client to get the best deal, we do want the deal to close. So we're not pulling totally against each other.
Even in litigation, I tend to have a good relationship with opposing counsel. Clients are sometimes a little surprised that attorneys don't really yell and scream at each other, but the truth is that a cordial relationship benefits the client.
The other side in administrative matters usually consists of not only attorneys but of auditors and other employees of some governmental agency. And here I've not been as lucky in finding honorable opponents. I've always known that many EDD auditors make no pretext of doing anything other than trying to make anyone they can find into employees. They are not bound to make judicial-like determinations. They have an agenda when they do an independent contractor audit, and they know it, and I know it.
But even knowing this, I've been shocked of late with some of the things I've heard from the mouths of EDD auditors and even from an administrative law judge (but more about that later).
In a recent case the status of some couriers was in question. One thing that the EDD looks at (and it's legitimate up to a point) is whether an individual has a significant investment in their independent business. An employee is not expected to buy equipment - but a business owner should have the "tools of the trade."
In this hearing one witness said he had bought a 16 foot bobtail truck as part of his investment in his courier business. When the auditor testified she said "none of the couriers had any significant investment in their business." I could write this off as editorializing. It's her position that the couriers are employees, not business people.
But then the judge asked "you don't think a 16 foot bobtail truck is a significant investment?" To which she replied "I don't know what a bobtail truck costs. In fact, I don't know what a bobtail truck is." And she said it with absolutely no remorse. No embarrassment. I didn't know what to say then, and I don't know what to say now.
