Download - Declaration of MAkmal in Response to SJ
Mariyam Akmal declares as follows:
1. I am over twenty one and competent to make this declaration, and I make these
statements based on personal knowledge. I am the plaintiff in this case along with my
company Aegis IT Solutions, Inc. of which I am an employee. As an individual I am
certified by Microsoft as a Systems Engineer, a Solutions Developer in Visual Basic and
Foxpro and as a Database Administrator in SQL Server 2000. My company Aegis IT
Solutions, Inc. is a Microsoft registered partner. I make this declaration for both myself
and Aegis IT Solutions.
2. I intend to demonstrate that what this case is really about is the way so many
of these large companies routinely supplement their work force by soliciting the services
of Independent Contractors solely to obtain the benefit of getting highly skilled workers
proficient in the latest technology without having to pay them any employee benefits as
well as avoiding having to pay the employer-side taxes for these workers. They then treat
them as de-facto employees by locking them into set schedules and requiring of them
things that are directly in violation of both state and federal law which allows the
Independent Contractor to operate autonomously. And if the Independent Contractors
complain about the fact that they aren’t being allowed to perform in the manner
prescribed by law, they’re then threatened with the revocation of their contract and in
some cases with being blacklisted. Purely due to size and financial advantage these
companies routinely treat the Independent Contractor as little more than an at-will
employee even though there is a signed contract to the contrary. With no agencies to
enforce compliance with the laws and the only recourse being to file a private lawsuit,
unless the courts hold these companies accountable and require them to honor the
commitments they’ve made, then these contracts aren’t worth the paper they’re printed
on, especially when the Independent Contractor is then threatened with sanctions and
other financial punitive harm for daring to complain to the courts.
The facts in my case are as follows:
a. I was recruited by TekSystems’ Sr. Recruiter Brian Vivaldi during April
2005 to fill a fill a need with his client Cingular Wireless for a SQL Server
Database Developer. I was finishing up a short-term 3 month contract at
Microsoft’s Redmond campus and was in contact with several recruiting
firms both in the southern California as well as the Seattle area.
b. My last day at Microsoft was Friday April 8, 2005 and Mr. Vivaldi had
arranged an in-person job interview for me with Gilberto Ramirez at
Cingular for Monday morning April 11, 2005.
c. At some point after the interview Cingular indicated to TekSystems a
desire to hire me for the position. The conditions of my contract with
TekSystems were then worked out including submitting to a drug testing
and giving consent for a background check. I was offered the contract
which I accepted.
d. My first day of work was on Monday April 18, 2005 and I was scheduled
to arrive at Cingular between 10:00 & 10:30. I maintained this schedule
up until June 1, 2005 when the whole Enterprise on Demand team was
told that “flextime” was being revoked per Gil Ramirez.
e. Although I initially complied with the change in my working hours I only
did so in order to facilitate negotiations. I had no intentions of staying and
working this new schedule for several reasons, the least of which is if I
had been told that I would be required to work a set 9:00 to 5:00 schedule
I would have declined the project. I had just finished a 3 month project at
Microsoft and had on occasion observed how horrendous the traffic is on
the 405 freeway during rush-hour although that wasn’t a problem for me
personally. The Microsoft Live Meeting group for which I had been
working allowed us to work in the truest since of Independent Contractors
by giving us the freedom to work any schedule and in any manner each of
us saw fit. My hours while there began anywhere from 10:30 am. 12:00
and ended 8 hours or so later. More importantly, I have been contracting
by acquiring contracts for Aegis and as it’s sole employee performing the
work, since 2002. I know what the laws are that govern the work Aegis
and I do. In exchange for assuming the financial burden of paying
employer-side payroll taxes, being required to carry a million dollars in
liability, errors & omissions as well as workers compensation insurance,
filing quarterly tax reports, and paying the state of Washington’s
Department of Revenue a percentage of it’s earnings, Aegis IT Solutions,
as an independent contractor is allowed to control the manner in which the
tasks it is given is achieved. This autonomy gets passed on to me as
Aegis’s employee.
f. During the week of June 19, 2005 things at work began becoming more
tense because I took a day off. I needed to begin making preparations to
have a new project to go to in case the Cingular/TekSystems project fell
through which I was anticipating. I spoke from home with Devon
Washington of TekSystems about confirming whether or not my first
invoice payment would be gotten to me on the upcoming Friday, June 24,
2005 after having not shown up the previous Friday. This was part of my
reasons for having doubts and beginning to look elsewhere for a new
project. In any case, Ms. Washington assured me that my invoice check
would be in TekSystems office on Friday June 24, 2005.
g. On Friday June 24, 2005 TekSystems returned my phone call of Friday
day morning to inform me once again that there was no check for me. I
left Cingular’s office and drove to TekSystems office in Bellevue to ask
for an interim remedy. All I received was the letter marked item number
11 in the in the document entitled “Documentation of Evidence – Table of
Contents” which stated that “due to an account error” they owed me the
amount of $4000 which should have been payable on June 16, 2005. It
also promised me that a check in that amount would be sent via overnight
delivery to my Federal Way address the next day. The package was not
delivered the next day as promised and was located by Mr. Vivaldi on
Monday morning. I eventually received it between 11:00 and 12:00 on
Monday.
h. I missed work on Monday even though I told both Cingular and
TekSystems I would be in around noon. Tracking down the package
containing my late check which hadn’t shown up on Saturday as promised,
running to several different banks to get it cashed and acquiring cashier’s
check to replace checks returned by my bank due to TekSystems not
paying my invoices on time, dropping off the new cashier’s checks, etc.
ate up most of my day and it was mid-afternoon before I was done. I
decided at that time I would not even bother going in for only 2 hours of
work, however I kept in close phone contact with the company advising
them of what I was doing and when I thought I’d make it into the office. I
didn’t have enough time to locate my old phone bills, but I know I have
copies of them and can produce them in time for trial to prove I didn’t just
not show up for work.
i. Monday June 24, 2005 is one of the two days that Cingular claims I failed
to show for work. The situation that prevented me from making it in that
day was created solely by TekSystems as evidenced in their own
document presented to me on June 24, 2005. If they had delivered the
check to me on Saturday as they promised then I would have able to repair
all of the damage caused by them on Saturday without is cutting into my
workday on Monday June 24, 2005. Or better yet, if they had paid me
when the invoices where actually due which was the previously week I
wouldn’t have need to spend time purchasing replacement cashier’s
checks and wasting time running errands while I should have been
working.
j. I took Tuesday June 28, 2005 off due to exhaustion caused by the stress of
dealing with both Cingular and TekSystems. I did phone TekSystems and
let them know. Again I don’t have a copy of my phone bill immediately
available but I can get a copy before trial.
k. When I attempted to return to the office on Wednesday June 29, 2005 I
was diverted to TekSystem’s office in Bellevue by Justin Born of
TekSystems where I was notified that my services were no longer needed
at Cingular. Mr. Born stated to me that my official record with
TekSystems would indicate that the reason I was no longer working with
them was because “the customer’s requirements changed” which I knew to
be untrue. When I asked Justin Born about the 5 days notice to Aegis
TekSystems was required to give, he shrugged it off. I submitted an
invoice to Sean McGraw of TekSystems via FAX anyway and marked the
invoice “Payment in Lieu of 5 Day Notice”. TekSystems declined to pay
this invoice. This document is attached and marked Exhibit ___.
l. To get to the core of the problem between myself and the defendants, I
refer you to the IRS’s website located at
http://www.irs.gov/businesses/small/article/0,,id=99921,00.html:
“Who is an Independent Contractor?
A general rule is that you, the payer, have the right to control or direct
only the result of the work done by an independent contractor, and not the
means and methods of accomplishing the result.
How should I report payments made to independent contractors?
You may be required to file information returns to report certain types of payments made to independent contractors during the year. For example, you must file Form 1099-MISC, Miscellaneous Income, to report
payments of $600 or more to persons not treated as employees (e.g. independent contractors) for services performed for your trade or business…”
We have submitted Demands for Admission to both TekSystems and
Cingular Wireless regarding whether or not they filed W-2 and/or 1099
IRS tax forms for myself and Aegis IT Solutions. They have not as yet
responded. Their answer however should help to support our position that
as a true Independent Contractor that neither Gil Ramirez nor anyone from
TekSystems had the right to change my working schedule or to enforce a
set working schedule on Aegis or myself.
3. To summarize, the facts in this case are as follows:
a. When a contract stipulates that the terms of engagement are that of
Independent Contractor, any items not specifically spelled out in the
contract are left to the discretion of the Independent Contractor.
b. TekSystems did not specify the working hours in my contract.
c. During the time that I worked for TekSystems as a W-2 employee I
worked a schedule of my own choosing which began between 10:00 and
10:30 a.m. each morning. No complaints were received about either the
schedule nor my work.
d. During the first 3 weeks in which I worked as a W-2 employee of Aegis I
worked a schedule of my own choosing which Aegis controlled which
began between 10:00 and 10:30 each morning. No complaints were
received about my schedule however I did began to document my tasks.
e. On June 1, 2005 Justin Born of TekSystems sent out an email revoking the
EOD team’s flex-time and requiring everyone on the team to adhere to a
new working schedule of 9:00 .M. to 5:00 p.m.
f. I informed both TekSystems and Cingular that as an Independent
Contractor I /Aegis had the right to set my own schedule and wanted to
continue to work the schedule under which I had accepted the contract.
Brian Vivaldi stated he would begin negotiations on my behalf.
g. Over the next several weeks I was badgered, insulted and defamed for
standing up for my rights as an Independent Contractor and not caving in
to the schedule change demand. During this time I kept the 9:00 to 5:00
schedule, not always arriving exactly at 9:00 due to traffic on the 405
freeway, however since I wasn’t legally required to comply I didn’t
concern myself with the 10 or 15 minutes discrepancy in my arrival time.
This discrepancy is what defendants refer to as my being “late”. There is
no such thing as being late when you’re in control of your own schedule
and as an employee of Aegis I was given the freedom to schedule my own
time.
4. If I had never worked a later schedule and then events occurred that made it
necessary for me to do so, then I could understand the reluctance of
defendants to allow this particular schedule even though they have no legal
right to do so. But this is the schedule that I as well as everyone else began
with and many of them (Ben, Wendy and Chris) continued to do so even after
the schedule change. I /Aegis was the only independent Contractor on the
team, everyone else was a W-2 employee of TekSystems yet I was required to
work a set schedule while many of the W-2 employees whose schedules they
did have the right to control, were not.
5. Because of all of these stated facts I maintain that Cingular and TekSystems
were not within their legal rights to have me removed from the project. The
contract states that I can be removed for “any valid legal reason”. By
defendants own admissions, from my first day on the project I was allowed to
work a flexible schedule. The fact that they lied by saying my work was
unsatisfactory, that it only became unsatisfactory after my schedule became an
issue and especially since they didn’t enforce the new schedule upon everyone
else does not constitute a “valid legal reason” for terminating the contract and
as such constitutes a a breach.
Rebuttal of comments made in Motion for Summary Judgment
1. On page 3 Lines 21 - 23 Ms. Foster, the attorney for the defendants and one of the
declarants states that “Neither the Primary not he Secondary Agreements contains
a guarantee of the number of hours a particular individual will work or the
schedule or any individual”. The second part of this statement is true. As has
been previously pointed out when the contract stipulates an Independent
Contractor (IC) relationship any terms not specifically spelled out are left to the
discretion of the Independent Contractor. The first part of the statement however
is false. Attachment A of the Secondary Supplier agreement indicates that the
contract length is 12 months.
2. On Page 4 Line 21.5 Justin Born states “team members were initially allowed a
“flextime schedule, meaning that they were expected to work core hours with
some “grace period”; that is, minor flexibility to account for traffic or other events
which might cause them to be a few minutes later than the 9:00 a.m. core start
time, as long as any delay was communicated to Cingular or TekSystems.” First
of all if you Google the term “flextime” and “definition” you will find that almost
all of the definitions indicate that flextime applies to “employees”. I was not a
Cingular/TekSystems employee. Wikipedia defines flextime or flexi-time as
follows: “Flextime is a variable work schedule, in contrast to traditional work
arrangements requiring employees to work a standard 9am to 5pm day. Under
flexitime, there is typically a core period of the day when employees are expected
to be at work (for example, between 10 am and 4pm), whilst the rest of the
working day is "flexitime", in which employees can choose when they work,
subject to achieving total daily, weekly or monthly hours in the region of what the
employer expects, and subject to the necessary work being done.” I am entitled to
work a schedule of my own choosing as an Independent Contractor yet I usually
negotiate a time period, especially in the beginning, where I am there during the
time that others with whom I need to work or collaborate or learn from are there.
Once I’ve acquired all the information needed to allow me to work independently
then I do that as much as possible until I need to consult or confer with others
again. Declarant Born’s statement that a “grace period” was allowed as long as
the person running late let Cingular/TekSystems know is just another indication
of the defendants inability, reluctance and outright refusal to relinquish control
over the Independent Contracts as mandated by law.
3. Beginning on page 4 Line 18.5 and continuing on to line 17 of page 5 the
declarants indicated that I a. “typically showed up in the late morning sometimes
just in time to take her lunch break” [Ramirez], b. “disregarded the directive and
continued to arrive late” [Born] and c. ‘on two occasions she failed to come to
work at all, with no notice to either TekSystems or Ramirez” [Ramirez]. All of
these statements are untrue and made with malice:
a. First of all since I’ve been working for Aegis I have not begun work
earlier than 10:00 a.m. This is by choice and allowed by Aegis under the
IC laws that govern the contracts that Aegis has operated under.
Therefore because I customarily work a later schedule I don’t even get
hungry until around 1:00 to 2:00 p.m and I try to only eat when I’m
hungry. Secondly I rarely take a lunch. If I want something to eat or
bring something for me to eat I‘ll eat at my desk while working. Lastly
the few times I went to lunch shortly after arriving were times when the
entire team had lunch together such as in the farewell lunch for team
member Chad who left the team to go on to job. This generally would
occur anywhere from 11:30 to 12:00. Ironically during this farewell lunch
Chad told me that Gil had gotten rid of another person by the name of
Patricia for doing the things that I am alleged to have done including
leaving for lunch shortly after arriving in the morning.
b. TekSystems Sr. Recruiter Brian Vivaldi can testify on my behalf that I
conformed to the illegal schedule imposed on me by the defendants. This
was discussed via email and phone conversation.
c. As previously stated, the first of those two days, Monday June 27, 2005
occurred because of a series of violations committed by TekSystems and if
not for their actions would not have occurred at all. Once again I can
provide by trial time cell phone records and probably emails to dispute this
untrue allegation. I have records to show that I contacted them on the
second date, Tuesday June 28, 2005 as well.
4. Page 6 Lines 16.5 to Line 5 on the following Page 7 reveals several of the lies told
by defendants and demonstrates who they contradict themselves. In their original
response to the Washington State Employment Security Department (ESD)
inquiry for clarification as to the reason for my separation from the work I was
doing for Cingular/TekSystems declarant Dea responded “the project was
terminated by the client. The client no longer needed her skill set.” The client
Cingular via Gil Rameriz did terminate my involvement with the project, however
the project itself continued on. Cingular’s requirements for my position did not
change as indicated by the fact that the project didn’t end. Defendant Gil Ramirez
made up this lie as a means to punish me and ruin my relationship with
TekSystems for asserting my rights as an Independent Contractor. This is the
contrived reason for removing me from the project. I have in my possession the
document which TALX who represents the defendant TekSystems provided to
ESD. It states that I was terminated because I lacked the ability to perform my
job which is another lie. That document is attached and marked as exhibit _____.
5. Page 10 Lines 13.5 to 15.5. Declarants statement that my “failure to do the job
was a perfectly ‘valid legal reason’ for TekSystems and/or Cingular to require
Aegis to remove it’s employee, Mariyam Akmal, from her assignment at
Cingular” is untrue. The only “failure” that occurred was defendants “failure” to
bully me into complying with their illegal demands that I work during the hours
of 9:00 – 5:00, their “failure” to know and understand the legal definition of an
Independent Contractor and their “failure” to comply with the law which governs
the manner in which Independent Contractors are allowed to work. They just
can’t seem to understand that the benefits that they obtain by freeing themselves
of the financial burdens of having to pay employee benefits and payroll taxes is a
tradeoff which requires them to relinquish control over the Independent
Contractor. It’s the relinquishing control part that they don’t seem to understand
and therefore never implemented which caused this whole problem. They have
traditionally obtained the benefits while maintaining control over the contractor
which is a violation of the rights of the contractor as well as labor laws. No one at
Cingular or TekSystems had the right to make any demands of that sort that they
did of me or Aegis because neither one of us were an employee of Cingular or
TekSystems.
6. Page 13 Lines 3 to 10 state that “Cingular needed personnel available, and
contracted with Aegis to provide some of that personnel. During the performance
of those contracts Cingular decided it needed people during core working hours.
Akmal’s refusal to work during those hours was the valid legal reason Cingular
demanded her removal from the position”. Cingular decided it needed people
during these core hours only AFTER the contract was entered into between
TekSystems and Aegis and only AFTER the working hours became an issue. The
original contract was not amended to include this change of schedule as spelled
out per the contract, therefore the schedule change was never legally added to the
contract meaning it was neither legal or valid. This means that Cingular’s so-
called “valid and legal reason” was neither valid nor legal and was in fact
contrived.
7. Page 21 Lines 5 – 8. The statement “Although representatives of both
TekSystems and Cingular admit that they had told Akmal that her schedule could
be somewhat flexible, neither defendant intended that she could work hours that
were entirely for her own convenience. Ramirez Dec., 9. Born Dec., 4.” This
statement demonstrates the mindset of the defendants as well as their ignorance of
the law under which they are conducting business. My schedule and who it
benefits is not any of their business because I AM NOT THEIR EMPLOYEE. If
they wanted an EOD team whose hours and time and lives they could control in
anyway they saw fit then the right and LEGAL thing to have done would have
been to staff the team with Cingular W-2 employees. True this would have the
added financial burden of employee benefits, payroll taxes, workers compensation
insurance, etc. but Cingular would have been fully within their rights to demand
anything they wanted of their employees regarding when work began and when
work ended. But that’s not what they did so since Cingular didn’t have to incur
all those expenses by opting to staff the EOD team with Independent Contractors,
by law they are required to relinquish control over everything except the end
results of the work produced per the IRS’s website previously cited. If Cingular
and TekSystems are still in doubt as the validity of this statement IRS form SS-8
can be filed which requests that the IRS conduct an investigation to determine the
actual status of workers. In this case it would have to determine the status of the
entire EOD team and if it finds that Cingular had erroneously classified it’s
workers then Cingular could be found liable for back taxes as well as workers
compensation for the entire EOD team going back to it inception. Indeed this is
why Microsoft ended up settling out-of-court after a seven year battle which
resulted in a change to it’s policy because it was utilizing Independent Contractors
as employees without them gaining the same employee benefits as regular
employees (United States District Court Western District of Washington at Seattle
No C93-0178C – Vizcaino vs. Microsoft). The defendants can’t have it both
ways.