In my previous blog I wrote about the problems that can occur for children and spouses of parents who die without a valid Will.  Another issue that parents must address to protect their families in the event of such a tragedy is proper planning for their children who may be beneficiaries of life insurance policies, IRAs, 401(k)s, Certificates of Deposit, and other similar financial accounts.

Life insurance policies and many of the other types of accounts allow the policy or account owner(s) to designate primary and secondary beneficiaries to receive the funds in the event that the owner dies.  Any funds traveling from such a policy or account do not pass through the owner’s estate – and thus are not normally subject to attachment by creditors of the owner – but rather they are delivered directly to the beneficiary(s).

The intuitive decision for many individuals with young children is to designate their spouse as the primary beneficiary, and to name their child or children as secondary beneficiaries; however, this is an ill-advised strategy.  For the reasons illustrated below, a nightmare scenario can occur if minor children become entitled to receive funds as beneficiaries of a life insurance policy or other account.

Georgia statute O.C.G.A. § 29-3-1, et. seq. requires that if a minor child inherits or otherwise receives any property – including cash money – in excess of $15,000.00 in value, the property must be delivered to an independent legal conservator who acts subject to the authority of the Probate Court.  This is true even when one or both parents of the minor beneficiary are still alive, as could be the case for a child inheriting property from a grandparent or other friend or relative.

During the term of any such conservatorship, the Court will be the final authority on how conservatorship funds are managed.  The procedures and hearings involved in appointing a conservator are time consuming and expensive, and they can substantially deplete the value of the property at issue.  In addition, a court-appointed conservator charges fees and is often required to buy an insurance policy to guard against fraud – all costs that are charged to the money being held for the minor.

Perhaps the biggest problem of all is that by operation of law, when the child reaches eighteen (18) years of age the funds in a conservatorship will be delivered to the outright control of the child.  Anyone who has ever spent any time with the average eighteen (18) year old knows that this is a “magic act” in the making, as a teenager has the supernatural ability to make money disappear in the blink of an eye.

To avoid these problems and bypass the risk that a conservatorship could be established for your child, you should establish a living trust that is separate from your Will to function as a beneficiary of life insurance policies, retirement accounts, and other financial accounts for the benefit of your child.   A living trust empowers you to nominate a trustee to receive and control any funds intended for your child’s benefit, and to hold and protect those funds while your child is too young to do so for him or herself.

Depending upon the terms and provisions that you incorporate into your trust, the trustee can have the discretion to spend the trust funds for the child’s education, health, and welfare, and under Georgia law the trustee will always have a fiduciary obligation to act in the best interest of the child.

By establishing a trust, you can also select the age at which the child can acquire outright control of the trust funds.  It does not have to be eighteen (18) years of age, but rather you are permitted to require that the funds remain in the trustee’s control until the child reaches an older age as selected by you.  The oldest age of distribution that I have personally been directed to draft into a trust was sixty-two (62) – which seemed a bit extreme – but it illustrates the point.

It is crucial that the trust for insurance policies, retirement accounts, and other financial account funds be separate from your testamentary trust and estate.  You never want to make your estate the beneficiary of funds that would otherwise travel outside of your estate, e.g., life insurance, because that creates the risk that those funds would become subject to attachment by creditors of your estate.  By establishing a separate trust and making its trustee the beneficiary of such policies and accounts you can protect the funds from creditors, avoid the mandatory conservatorship issues addressed above, and establish a plan of distribution that works for the best interest of your child.

Although death may be a depressing topic for many, the issues addressed in this blog are important for those parents with young children, and unfortunately, it has been my experience over the years that people have been misinformed about this area of the law.

David L. Walker, Jr., is a partner in the law firm of Flint, Connolly & Walker, LLP in Canton, Georgia, where he represents businesses and individuals in various legal matters.

From the Wall Street Journal, February 7, 2012, by Stephen Moore

Is it fair that some of Mr. Obama’s largest campaign contributors received federal loan guarantees?

President Obama has frequently justified his policies—and judged their outcomes—in terms of equity, justice and fairness. That raises an obvious question: How does our existing system—and his own policy record—stack up according to those criteria?

Is it fair that the richest 1% of Americans pay nearly 40% of all federal income taxes, and the richest 10% pay two-thirds of the tax?

Is it fair that the richest 10% of Americans shoulder a higher share of their country’s income-tax burden than do the richest 10% in every other industrialized nation, including socialist Sweden?

Is it fair that American corporations pay the highest statutory corporate tax rate of all other industrialized nations but Japan, which cuts its rate on April 1?

Is it fair that President Obama sends his two daughters to elite private schools that are safer, better-run, and produce higher test scores than public schools in Washington, D.C.—but millions of other families across America are denied that free choice and forced to send their kids to rotten schools?

Is it fair that Americans who build a family business, hire workers, reinvest and save their money—paying a lifetime of federal, state and local taxes often climbing into the millions of dollars—must then pay an additional estate tax of 35% (and as much as 55% when the law changes next year) when they die, rather than passing that money onto their loved ones?

Is it fair that Treasury Secretary Tim Geithner, former Democratic Senate Majority Leader Tom Daschle, former Ways and Means Chairman Charlie Rangel and other leading Democrats who preach tax fairness underpaid their own taxes?

Is it fair that after the first three years of Obamanomics, the poor are poorer, the poverty rate is rising, the middle class is losing income, and some 5.5 million fewer Americans have jobs today than in 2007?

Is it fair that roughly 88% of political contributions from supposedly impartial network television reporters, producers and other employees in 2008 went to Democrats?

Is it fair that the three counties with America’s highest median family income just happen to be located in the Washington, D.C., metro area?

Is it fair that wind, solar and ethanol producers get billions of dollars of subsidies each year and pay virtually no taxes, while the oil and gas industry—which provides at least 10 times as much energy—pays tens of billions of dollars of taxes while the president complains that it is “subsidized”?

Is it fair that those who work full-time jobs (and sometimes more) to make ends meet have to pay taxes to support up to 99 weeks of unemployment benefits for those who don’t work?

Is it fair that those who took out responsible mortgages and pay them each month have to see their tax dollars used to subsidize those who acted recklessly, greedily and sometimes deceitfully in taking out mortgages they now can’t afford to repay?

Is it fair that thousands of workers won’t have jobs because the president sided with environmentalists and blocked the shovel-ready Keystone XL oil pipeline?

Is it fair that some of Mr. Obama’s largest campaign contributors received federal loan guarantees on their investments in renewable energy projects that went bust?

Is it fair that federal employees receive benefits that are nearly 50% higher than those of private-sector workers whose taxes pay their salaries, according to the Congressional Budget Office?

Is it fair that soon almost half the federal budget will take income from young working people and redistribute it to old non-working people, even though those over age 65 are already among the wealthiest Americans?

Is it fair that in 27 states workers can be compelled to join a union in order to keep their jobs?

Is it fair that nearly four out of 10 American households now pay no federal income tax at all—a number that has risen every year under Mr. Obama?

Is it fair that Boeing, a private company, was threatened by a federal agency when it sought to add jobs in a right-to-work state rather than in a forced-union state?

Is it fair that our kids and grandkids and great-grandkids—who never voted for Mr. Obama—will have to pay off the $5 trillion of debt accumulated over the past four years, without any benefits to them?

Mr. Moore is a member of the Journal’s editorial board.

Parents – you need to execute a Last Will and Testament.  I recently represented an unfortunate client whose husband unexpectedly died of a heart attack while he was getting dressed for work.  He was survived by my client (his wife) and their two young children, and he did not have a will.  I write that she was unfortunate, not only because her husband tragically passed away, but also because his untimely death left his widow with a real legal nightmare.

My client and her departed husband didn’t know that under Georgia law, if you are married with minor children and you die without a will your spouse is not your sole legal beneficiary.  Instead, your spouse becomes a joint heir with your children.  Generally speaking, this is not a good thing.

Effectively, this means that the ownership in all of the property of the deceased is split amongst the widow and the children.  To make matters worse, if those children are minors, the law requires that a conservatorship be set up through the Probate Court (above and beyond what is typically required to handle the deceased person’s estate).  In most cases, the conservatorship requires that the guardian of the children (who is appointed by the Probate Court) must purchase a surety bond and file annual returns with the Court.  Whenever the surviving spouse wants to take action with regard to the property that he or she inherited from their partner – such as selling or refinancing the marital residence – he or she will have to get permission from the Judge of the Probate Court to do so.  Filing the motions and attending the hearings to obtain such permission is time-consuming, expensive, and an emotionally draining exercise.

On the other hand, if a spouse with minor children dies with a valid will, the estate will be administered in accordance with the terms of the will, and the aforementioned steps are avoided.  By simply executing a valid Last Will and Testament, parents can control the disposition of their estate and avoid all of the hassles that my unfortunate client has been forced to endure.

It does not matter where you go to get a Will.  Wills are inexpensive, but they can be an invaluable form of “cheap insurance”  against hassles and expenses for your surviving family should you die.  As long as your will meets the requirements of Georgia law, your family is protected.

So please, do your family a favor.  Protect them, even after you die, with a Will.

David L. Walker, Jr., is a partner in the law firm of Flint, Connolly & Walker, LLP in Canton, Georgia, where he represents businesses and individuals in various legal matters.

Happy Holidays!

Our offices will be closed on Monday, December 26, 2011 and January 2, 2012 in observance of the Christmas and New Year’s holidays.

Flint, Connolly & Walker, LLP, recently adorned the façade of its offices with a proud display of the U.S. Flag, the Georgia Flag, and the Gadsden Flag.  While most members of our community are acquainted with all three banners, many do not know the precise history and meaning of the Gadsden Flag.

The Gadsden Flag depicts a coiled rattlesnake with thirteen rattles against a yellow background with the motto:  “Don’t Tread on Me”.  It was first commissioned by Navy Colonel Christopher Gadsden in 1775 who delivered it as a gift to Commodore Esek Hopkins, the Commander of the Continental Navy for the American colonies in the Revolutionary War.  Shortly thereafter the flag flew on the mainmast during the Continental Navy’s first mission against the British fleet, and it remained as the most prominent flag of the American colonies until the formal adoption of the Stars and Stripes.

As noted by one historical observer, “since the Revolution, the flag has been reintroduced as a symbol of American patriotism, disagreement with Government, or support for civil liberties.”  Its display at Flint, Connolly & Walker invokes our empathy with these concerns.

The rattlesnake itself was often used as a symbol of the American colonies during the Revolutionary era; however, its meaning was most succinctly described in an essay written by Benjamin Franklin – under the pseudonym of “the American Guesser” – in 1775:

I recollected that her eye excelled in brightness, that of any other animal, and that she has no eyelids.  She may therefore be esteemed an emblem of vigilance.  She never begins an attack, nor, when once engaged, ever surrenders. She is therefore an emblem of magnanimity and true courage [and] she never wounds till she has generously given notice, even to her enemy, and cautioned him against the danger of stepping on her.

Depicted in this manner, the characteristics of the colonial symbol are no less essential in today’s environment than they were 225 years ago.

Benjamin Franklin’s 1775 essay depicts attributes that we believe are fundamental to the successful representation of our clients.  We are vigilant to preserve and promote the best interests of our clients, by seizing opportunities and initiatives to improve their circumstances and dispatching threats that may hinder their successes.  In that pursuit we will always seek a course of action that is strategically designed for our individual client’s needs.

We will always be judicious with our client’s resources.  To this end we prefer Benjamin Franklin’s depiction of the rattlesnake, instead of the “bulldog” used by many attorneys to describe their own approach to the practice of law.  A bulldog is stubborn, and it is bred with an inclination to fight first, to fight for the sake of fighting, and to fight without regard to the collateral damage it may create for its own master–these are not the attributes that we seek to embody or embrace in the practice of law.

Instead, we team with our clients and craft cost-effective and prudent strategies for confronting the challenges and opportunities that they encounter. In keeping with the attributes embodied by Gadsden’s flag, when circumstances indicate that a diplomatic resolution cannot be achieved or that our client’s best interest will be obtained through more aggressive means, we will engage the opponent strategically, decisively, and relentlessly to achieve success for our client.

We are proud to display the Gadsden Flag as a symbol of our belief in the American spirit that it represents and our commitment to provide vigilant, prudent, and relentless representation for our clients.

It is important for Georgia business owners to be familiar with federal employment regulations such as Title VII of the Civil Rights Act of 1964, the Equal Pay Act of 1963, The Age Discrimination Act of 1967, and Title I of the Americans with Disability Act of 1990.

Although business owners and managers may be familiar with the general requirements of these laws, which were originally designed under the auspices of limiting discrimination in the workplace, it is important to effectively institute workplace policies and procedures to avoid encountering unintended liabilities arising out of these and other state and federal regulations.

1. The Equal Employment Opportunity Commission

Created in 1965, the U.S. Equal Employment Opportunity Commission (EEOC) is the arm of the federal government primarily responsible for enforcing anti-discrimination laws and regulations in the workplace.  Generally speaking, any employer who employees fifteen (15) or more employees is subject to EEOC enforcement.

The EEOC investigates allegations of discrimination by employees, and in certain instances it may institute civil proceedings and other sanctions against employers that it accuses of violating EEOC enforced laws or policy.  In other instances, the EEOC may permit individual employees and their attorneys to seek damages from their employers – or former employers – by filing private lawsuits directly against the employer for alleged acts of discrimination.

2. Anti-Discrimination Policies in the Workplace

In order to avoid being subject to damaging allegations of workplace discrimination, it is important that employers adopt policies and procedures to deter discriminatory conduct within their business.

To avoid such liability, an employer must first be conscious of what types of conduct are prohibited.  The EEOC prohibits discrimination based upon a person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.  It is also prohibits discrimination against individuals who have complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

It is critical that all employers adopt and implement policies prohibiting discriminatory conduct.  A company should conduct regular training of its managers and employees concerning their rights and obligations arising under anti-discrimination laws and the remedies that are available to any individual who believes they have been subjected to discrimination in the workplace.  Likewise, an employer is well-advised to adopt internal procedures by which employees may report alleged acts of discrimination to management and/or ownership, and have those allegations properly investigated and addressed.

3. The Employee Handbook

As a general rule, an Employee Handbook is an important tool for employers to establish requirements, privileges, and expectations of workplace conduct for their employees.  It is vital for any employer to have a well-drafted employee handbook to confront a host of potential work-related liabilities that can arise between employers and employees.

In the context of establishing EEOC compliant anti-discrimination policies, it is critical for owners and management to promulgate Employee Handbooks which advise managers and employees about a company’s anti-discrimination policies and the remedies available to employees who believe they have been subjected to improper treatment.  These handbooks operate as an indispensible first line of defense for any employer who is faced with an EEOC investigation.

Any Georgia business owner who does not already utilize a professionally drafted employee handbook is well-advised to consult with a qualified attorney to ensure that his or her company has exercised all available means to protect itself against EEOC scrutiny and charges of discrimination.

David L. Walker, Jr., is a partner in the law firm of Flint, Connolly & Walker, LLP in Canton, Georgia, where he represents businesses and individuals in various legal  matters.

“First the man takes a drink, Then the drink takes a drink, Then the drink takes the man.”

- EDWARD R. SILL

Apart from minor traffic offenses, a charge of Driving Under the Influence might be the most likely way the average citizen would run afoul of the law.  Should this unfortunate situation befall you, here are a few factors to consider:

- The Stop

- Is the traffic stop legal?  An improper stop may be a defense to a DUI charge.  Each case is different, and there are several factors which can determine the validity of the initial traffic stop.  Seek advice from an attorney to learn more.

- Probable Cause

- Is there probable cause for the officer to suspect intoxication?  Clues that officers look for to determine probable cause can include:

- The smell of alcohol or other intoxicants on the driver’s person or in the vehicle

- Slurred speech

- Horizontal Gaze Nystagmus (this is the test where you are asked to follow a pen with your eyes)

- If such clues appear, the officer may request that a chemical test be performed in order to determine your Blood Alcohol Content.  If such tests are to be performed, the officer must recite the Georgia Implied Consent Notice to you.  This Notice must be read at the time of arrest, or as soon after as circumstances permit, although this need not be a formal arrest.  “Arrest” in this sense simply means you are not free to leave.

- “Per Se” or “Less Safe?”

- The relatively new offense of “Less Safe DUI” does not require a Blood Alcohol Concentration of .08 grams, as does “Per Se DUI.”  All that is required under “Less Safe” is that your abilities are impaired due to intoxication such that your driving is less safe.  This determination is often made by either your committing a traffic offense, or by a refusal to submit to chemical or field sobriety tests.  But it is important to note, neither of the above is required, simply the officer’s opinion that you are less safe due to intoxication may suffice. In addition, glue, aerosol fumes, or any toxic vapor which can affect visual or mental acuity may expose you to a DUI charge.  Any amount of marijuana or controlled substance in the blood or urine exposes you to a DUI charge, regardless of the presence of alcohol in your breath or blood.

- Also consider that the .08 grams BAC does not only apply while you are driving.  By statute, if your BAC is .08 up to 3 hours after driving, you can be convicted of DUI. OCGA 40-6-391(a)(5).  In addition, if your BAC is .08 or higher, there is no requirement for the State to show that your driving was actually impaired.

- Consequences

- If arrested for Per Se DUI, or after having refused to submit to chemical or field sobriety tests, you have ten business days to schedule a hearing to avoid an administrative suspension of your driver’s license.  If this hearing is not scheduled, your driver’s license will be administratively suspended for a length of time dependant on your previous criminal history.

- If convicted of DUI, your license WILL be suspended, and if your BAC was .08 or greater, you MUST serve at least 24 hours in custody.  If this requirement was not met by your initial detention at the time of arrest, then you will have to serve whatever balance remains after your plea or trial has concluded.  These mandatory minimums are for a 1^st lifetime DUI for drivers 21 or older.  Minimum penalties for repeat offenders and minors under the influence are harsher.

- Any license suspension comes through the Georgia Department of Driver Services, not the Court, and is theoretically indefinite.  At the end of your license suspension, you are now eligible to have your license reinstated.  For example, if your license were suspended January 1^st for a period of 6 months, you would not automatically be able to drive legally on July 1^st.  You would simply be able to seek reinstatement of your license from DDS at that time.

Changes in DUI law can be easy to miss in everyday life.  If you have any questions or are in need of advice or representation pertaining to DUI or any area of legal need, please call Flint, Connolly & Walker at (770) 720-4411

J.D. Blevins is an associate attorney in the law firm of Flint, Connolly & Walker, LLP in Canton, Georgia, where he represents and assists clients with their criminal and civil legal matters.

My previous article dealt with the standards used by the Internal Revenue Service at making a determination about the status of a worker as an employee versus an independent contractor. These standards are not, however, the only ones that apply to this critical question. The federal Fair Labor Standards Act (FLSA) also affects all employers and compliance with this sweeping law is essential to every employer.

Because the Fair Labor Standards Act applies only to employer-employee relationships, independent contractors are not covered by FLSA provisions. Court decisions interpreting FLSA coverage rules require that employers use an “economic reality” test in determining whether an employment relationship exists with respect to a given worker.

Similar to other tests, the economic reality test focuses on the degree of control exercised by the employer as an essential factor in determining whether an employer/employee relationship exists. While no single factor is controlling or decisive in determining whether an employment relationship exists, the facts and circumstances that courts and federal enforcement officials examine in deciding whether an individual is an employee or an independent contractor are:

• Control over manner of work. The degree to which the employer controls or directs the manner in which work is performed;

• Managerial skill involved. Whether the worker’s opportunity for profit or loss depends on his or her managerial skills;

• Permanent or Temporary basis. Whether the worker’s duties are performed for the employer on an ongoing or permanent basis;

• Importance of the work at issue. Whether the service performed by the worker is an integral part of the employer’s business;

• Ownership of work equipment. The extent of the worker’s investment in equipment or materials needed to perform the job; and,

• Dependency of worker on employer. The degree to which the worker is engaged primarily for the benefit of the employer.

Because there are multiple sets of standards to be considered and applied when making a decision or determination about a worker’s status, consultation with your company’s lawyer is strongly recommended. Employers should note that it is extremely important to prepare and execute an Independent Contractor Agreement should the employer determine that he or she intends to hire a worker as an independent contractor.

Douglas H. Flint is senior partner in the law firm of Flint, Connolly & Walker, LLP in Canton, Georgia, where he represents and assists both businesses and individuals with their legal matters.

For the unwary business owner, the terms “independent contractor” and “employee” may seem to be a question of whether the business owner or manager elects to issue a W-2 or 1099 to the worker in question.  However, these words represent important distinctions that have been specifically defined by the Internal Revenue Service.  A business owner who fails to properly classify its workers can suffer significant penalties and financial detriment.  

Whether someone who works for you is an employee or an independent contractor is an important question. The answer determines your liability to pay and withhold Federal income tax, Social Security and Medicare taxes, and Federal unemployment tax.  In general, someone who performs services for you is your employee if you can control what will be done and how it will be done.

 The IRS test for determining whether an individual is an independent contractor or an employee often is termed the “right-to-control test” because each factor is designed to evaluate who controls how work is performed. Under IRS rules and common-law doctrine, independent contractors control the manner and means by which contracted services, products, or results are achieved. The more control a company exercises over how, when, where, and by whom work is performed, the more likely the workers are to be considered employees, not independent contractors.

A worker does not have to meet all 20 criteria to qualify as an employee or independent contractor, and no single factor is decisive in determining a worker’s status. The individual circumstances of each case determine the weight the IRS assigns to these different factors.

NOTE:  Employers who are uncertain about how to classify a worker can request an IRS determination by filing Form SS-8, “Determination of Employee Work Status for Purposes of Federal Employment Taxes and Income Tax Withholding.” However, some caution that the IRS usually classifies workers as employees whenever their status is not definite and clear-cut. In addition, employers that request an IRS determination lose certain protections against liability for misclassification.

In many circumstances, the issue of who has the right to control is often not clear and the Tax Code does not define the term “employee.” So the IRS developed the “20-Factor Test” to arrive at an answer. It is not necessary that a business owner have all the factors in its favor to be able to treat a worker as an independent contractor, but the classification of a worker as an independent contractor is more likely to pass the common law test if more important factors point to independence.

The 20 factors considered under the right to control test, and utilized to determine the validity of an independent contractor classification include: 

• Level of instruction.  If the company directs when, where, and how work is done, this control indicates a possible employment relationship.

• Amount of training.  Requesting workers to undergo company-provided training suggests an employment relationship since the company is directing the methods by which work is accomplished.

• Degree of business integration.  Workers whose services are integrated into business operations or significantly affect business success are likely to be considered employees.

• Extent of personal services.  Companies that insist on a particular person performing the work assert a degree of control that suggests an employment relationship.  In contrast, independent contractors typically are free to assign work to anyone.

• Control of assistants.  If a company hires, supervises, and pays a worker’s assistants, this control indicates a possible employment relationship.  If the worker retains control over hiring, supervising, and paying helpers, this arrangement suggests an independent contractor relationship.

• Continuity of relationship.  A continuous relationship between a company and a worker indicates a possible employment relationship.  However, an independent contractor arrangement can involve an ongoing relationship for multiple, sequential projects.

• Flexibility of schedule.  People whose hours or days of work are dictated by a company are apt to qualify as its employees.

• Demands for full-time work.  Full-time work gives a company control over most of a person’s time, which supports a finding of an employment relationship.

• Need for on-site services.  Requiring someone to work on company premises—particularly if the work can be performed elsewhere—indicates a possible employment relationship.

• Sequence of work.  If a company requires work to be performed in specific order or sequence, this control suggests an employment relationship.

• Requirements for reports.  If a worker regularly must provide written or oral reports on the status of a project, this arrangement indicates a possible employment relationship.

• Method of payment.  Hourly, weekly, or monthly pay schedules are characteristic of employment relationships, unless the payments simply are a convenient way of distributing a lump-sum fee.  Payment on commission or project completion is more characteristic of independent contractor relationships.

• Payment of business or travel expenses.  Independent contractors typically bear the cost of travel or business expenses, and most contractors set their fees high enough to cover these costs.  Direct reimbursement of travel and other business costs by a company suggests an employment relationship.

• Provision of tools and materials.  Workers who perform most of their work using company-provided equipment, tools, and materials are more likely to be considered employees.  Work largely done using independently obtained supplies or tools supports an independent contractor finding.

• Investment in facilities.  Independent contractors typically invest in and maintain their own work facilities.  In contrast, most employees rely on their employer to provide work facilities.

• Realization of profit or loss.  Workers who receive predetermined earnings and have little chance to realize significant profit or loss through their work generally are employees.

• Work for multiple companies.  People who simultaneously provide services for several unrelated companies are likely to qualify as independent contractors.

• Availability to public.  If a worker regularly makes services available to the general public, this supports an independent contractor determination.

• Control over discharge.  A company’s unilateral right to discharge a worker suggests an employment relationship.  In contrast, a company’s ability to terminate independent contractor relationships generally depends on contract terms.

• Right of termination.  Most employees unilaterally can terminate their work for a company without liability. Independent contractors cannot terminate services without liability, except as allowed under their contracts.

The above-listed factors are used for the purpose of determining independent contractor status by the Internal Revenue Service. 

Whether or not an employee is an independent contractor is also important with regard to many other aspects of the law such as the applicability of the U.S. Fair Labor Standards Act, the necessity of Workers Compensation insurance and many other employer-employee issues.  The tests used to consider a workers status under these laws are similar to the IRS’ 20-Factor Test but not the same.

Appropriate legal counsel is always wise any time a decision about a worker’s status is made.  Employers are strongly encouraged to carefully review the law with your company’s lawyer.  Should your ultimate determination be that you wish to proceed to hire a worker as an independent contractor, it is also essential that an Independent Contractor Agreement be executed.

Douglas H. Flint is senior partner in the law firm of Flint, Connolly & Walker, LLP in Canton, Georgia, where he represents and assists both businesses and individuals with their legal  matters.

Flint, Connolly & Walker, LLP welcomes Joshua D. Blevins to the firm as associate attorney.  J.D. was born and raised in Valdosta, GA.   He graduated with a B.A. in History from Valdosta State University and received his Juris Doctorate from Mercer University in 2009.  He has been practicing law in Cherokee County since November of 2009.

J.D. will focus his practice on representing individuals with all their legal matters, such as personal and business disputes, criminal and juvenile cases, and civil claims large and small.  J.D. will handle cases in all of the courts of Cherokee County, including Superior Court, State Court, Juvenile Court, Probate Court, and Magistrate Court.  J.D. will also assist the partners of Flint, Connolly & Walker, LLP on various matters including contract law, business and commercial law, probate and estate planning, real estate litigation and personal injury representation.