[vox] Incredible Microsoft Story

[Bob Scofield]

This is an incredible story.  It's long and convoluted, but it's interesting.

An attorney hires a law student to do some work on a big trial.  The student 
does good work, but the attorney is unhappy with the student's billing.  A 
big bill is submitted before the work is completed.  The attorney and student 
agree that the student will the finish the work for a flat fee of $800.

When the work is completed the attorney cannot afford to pay the $800.  So 
after awhile the student goes to the California Labor Commission.  When he 
does, the attorney forks over the $800.  But the Labor Commission imposes a 
$4,800 penalty for the delay under Labor Code section 203.

The attorney has a trial de novo in the superior court.  The issue of whether 
the student was an employee or an independent contractor comes up in two 
ways.  First, if the student was an independent contractor he can't go before 
the Labor Commission.  Second, if the employer has a good faith belief that 
he didn't owe "wages" then a penalty can't be imposed.  An independent 
contractor does not get "wages" and so if the employer had a good faith 
belief that the student was an independent contractor, then he doesn't have 
to pay the penalty.

Now there are several factors to consider in determining whether one is an 
employee or an independent contractor.  One is whether the worker uses his or 
her own tools, or instead uses the employer's tools.  If one uses his or her 
own tools, that is a factor tending to prove that the person is an 
independent contractor.

In this case the student started out using his own computer, etc.  But there 
was a problem.  The attorney's Microsoft Word could not read the documents 
produced on the student's version of Microsoft Word.  So to resolve the 
problem the attorney gave the student a laptop to work on that had a version 
of Word that could produce documents that the attorney could read on his 
computer.

In the superior court trial the judge was very interested in the student's use 
of the lawyers's laptop.  And he specifically refers to it in his order 
upholding the $4,800 penalty as he found that the student was an employee.

Forget about licensing fees.  Open Office here could arguably have saved the 
attorney $4,800 in this case.

Bob