An open discussion of any and all topics surrounding the service of legal process in the State of Washington.http://www.4thcorner.com/4thcorner/WebSite/C4PSE_QA.nsf/en-usWed, 3 Mar 2010 10:33:13 PM -0700 Wed, 3 Mar 2010 10:33:13 PM -0700 Robin K Mullins Residency Requirement Advances in the Legislature http://www.4thcorner.com/4thcorner/WebSite/C4PSE_QA.nsf/dx/residency-requirement-advances-in-the-legislature.htm?opendocument&comments#03042010123313AMDOM9PT.htm Wed, 3 Mar 2010 01:28:56 PM -0500 Terence M. Gardner Residency Requirement Advances in the Legislature http://www.4thcorner.com/4thcorner/WebSite/C4PSE_QA.nsf/dx/residency-requirement-advances-in-the-legislature.htm?opendocument&comments#03032010012856PMDOMQUM.htm Wed, 3 Mar 2010 01:21:12 AM -0500 Theresa Escott A Tid Bit from Jim Cronin http://www.4thcorner.com/4thcorner/WebSite/C4PSE_QA.nsf/dx/a-tid-bit-from-jim-cronin.htm?opendocument&comments#03032010012112AMDOMAMU.htm Mon, 22 Feb 2010 08:53:05 AM -0500 Gary Crowe NAPPS "Post a Job" http://www.4thcorner.com/4thcorner/WebSite/C4PSE_QA.nsf/dx/napps-post-a-job.htm?opendocument&comments#02222010085305AMDOMKGB.htm Sun, 21 Feb 2010 12:39:12 PM -0500 Tony Klein Using a Pile Driver to Hammer a Nail - NYC
You may also add the 4th Amendment too: Interdiction of unreasonable searches and seizures.

I agree that process servers see this business as the sale of a commodity. We sell, among other things, a proof of service, the facilitation of the court's process, and, an intangible, "peace of mind" to a client who must rely on that effort.

Unfortunately, I feel our industry has lost sight of (assuming we EVER had sight of) the fact that what we do by signing a proof of service, and filing it with a court, creates evidence that the court, the parties, and the public can rely.

When our process servers lie, and the owners of process servers are dismissive about the rules, and acquiesce to improprieties, it cheapens our integrity and affects the public's perception of the efforts of all of us.

The NYC effort to require GPS devices is an personal affront to me, however it demonstrates how little trust public officials have in our industry. Signing a proof or affidavit is no longer trustworthy - a process server must now also further prove their activity with an electronic device! What's next - an ankle bracelet?

Tony Klein]]>
You may also add the 4th Amendment too: Interdiction of unreasonable searches and seizures.

I agree that process servers see this business as the sale of a commodity. We sell, among other things, a proof of service, the facilitation of the court's process, and, an intangible, "peace of mind" to a client who must rely on that effort.

Unfortunately, I feel our industry has lost sight of (assuming we EVER had sight of) the fact that what we do by signing a proof of service, and filing it with a court, creates evidence that the court, the parties, and the public can rely.

When our process servers lie, and the owners of process servers are dismissive about the rules, and acquiesce to improprieties, it cheapens our integrity and affects the public's perception of the efforts of all of us.

The NYC effort to require GPS devices is an personal affront to me, however it demonstrates how little trust public officials have in our industry. Signing a proof or affidavit is no longer trustworthy - a process server must now also further prove their activity with an electronic device! What's next - an ankle bracelet?

Tony Klein]]> http://www.4thcorner.com/4thcorner/WebSite/C4PSE_QA.nsf/dx/using-a-pile-driver-to-hammer-a-nail-nyc.htm?opendocument&comments#02212010123912PMDOMPVK.htm Fri, 5 Feb 2010 12:00:56 PM -0500 Robert DeFilippis The Six Part Test - Employee vs IC - Part 3
We require a copy of a valid business license and/or a dba statement for all contractors. These normally are filed at the county level in CA but in Washington State, I believe you have the option of getting a master business license or a local license.]]>
We require a copy of a valid business license and/or a dba statement for all contractors. These normally are filed at the county level in CA but in Washington State, I believe you have the option of getting a master business license or a local license.]]> http://www.4thcorner.com/4thcorner/WebSite/C4PSE_QA.nsf/dx/the-six-part-test-employee-vs-ic-part-3.htm?opendocument&comments#02052010120056PMDOMP5M.htm Mon, 1 Feb 2010 02:48:31 PM -0500 Matt Klein The Six Part Test - Employee vs IC - Part 1 http://www.4thcorner.com/4thcorner/WebSite/C4PSE_QA.nsf/dx/the-six-part-test-employee-vs-ic-part-1.htm?opendocument&comments#02012010024831PMDOMSED.htm Mon, 1 Feb 2010 12:12:44 AM -0500 Tony Klein The Six Part Test - Employee vs IC - Part 1
Far be it for me to address Washington law, because Independent Contractor (IC) issues and worker's comp issues are state specific.

Nevertheless, I'll try to address a couple of issues that may be relevant to Washington state, based upon my experience in California, having been put out of business by the California Employment Development Department (EDD) in 1991 over this issue.

First, in general, an IC for tax purposes, and worker's compensation purposes, and civil liability purposes are distinguishable. Perhaps the most strict definition, one that would hold for employee status, would be under worker's compensation laws or regulations because the law encourages an employer to be held responsible for a work related injury. I only point that out because you should beware that taxing authorities try to use a workers' comp standard for tax purposes because its easier for them to establish employee status.

By the way, if they are successful, your company will be turned over to the state Comp Board so that they can ask you to show that you had comp policies in place for those newly re-classified workers.

The main reason IC's are misclassified is because the employer seeks to "control the manner and means" of the work. In this context, a process serving principal (for clarity only, a term to refer to an agency or one who contracts for services) cannot specify the manner of performing the service, time of service, the sequence or route to take, what to say, daily progress reports, or to attend office meetings.

The employer may provide information regarding deadlines, imposed by the law or the client's request, and if a status report is requested by the client, a progress report may be requested if the client asks for one.

Because process serving is such a hybrid business, and the way the business is structured, many of the IC elements do not fit into neat categories. California has a 24 part common law test which overlaps with the 20 part IRS common law test. In the early 1990s CAPPS and the EDD met and crafted a 15 part "industry specific" regulatory test for process servers to set forth a bright line test for determining IC status, comparing the evidence of employee vs. IC status of a worker, and weight ascribed to those elements. California process servers are 1 of only 11 industries which have an "industry specific regulation." (Title 22, CCR, Section 4304-11) Others are Real Estate Salespeople, Home Healthcare Workers, Computer Service Workers, Artists, etc.

Here is summary:

Setting of Policies, Rules or Procedures of Conduct by Principal - Great Weight

Supervision - Great Weight

Reporting to Office and/or Contacting Principal - Great Weight

Training - Great Weight

Meetings - Great Weight

Existence of Contract - Not Conclusive of relationship

Right to terminate - Great Weight

Engagement in a Distinct Business - Great Weight, if server is in a distinct business from Principal, i.e., offering service to others or the general public

Required Level of Skill - Low Weight, but low level of skill indicated employee status

Duration of Service - Multiple short term assignments, rather than open ended duration indicates independence

Whether Principal Provides Instrumentalities, Tools, and Place of Work - If Principal provides tools (telephones, cars, radios, maps, etc.) or a place to wait in the office, that is an indication of employment

Custom in Industry - Low Weight, not conclusive

Method of Payment - Low weight, by the job or during specified pay periods is not conclusive

Belief of parties - Low weight, only implies intention of parties

I have published that regulation in my book but it is apparently only available through Thompson-West, in a law library or a California County Clerk's office or repository.]]>
Far be it for me to address Washington law, because Independent Contractor (IC) issues and worker's comp issues are state specific.

Nevertheless, I'll try to address a couple of issues that may be relevant to Washington state, based upon my experience in California, having been put out of business by the California Employment Development Department (EDD) in 1991 over this issue.

First, in general, an IC for tax purposes, and worker's compensation purposes, and civil liability purposes are distinguishable. Perhaps the most strict definition, one that would hold for employee status, would be under worker's compensation laws or regulations because the law encourages an employer to be held responsible for a work related injury. I only point that out because you should beware that taxing authorities try to use a workers' comp standard for tax purposes because its easier for them to establish employee status.

By the way, if they are successful, your company will be turned over to the state Comp Board so that they can ask you to show that you had comp policies in place for those newly re-classified workers.

The main reason IC's are misclassified is because the employer seeks to "control the manner and means" of the work. In this context, a process serving principal (for clarity only, a term to refer to an agency or one who contracts for services) cannot specify the manner of performing the service, time of service, the sequence or route to take, what to say, daily progress reports, or to attend office meetings.

The employer may provide information regarding deadlines, imposed by the law or the client's request, and if a status report is requested by the client, a progress report may be requested if the client asks for one.

Because process serving is such a hybrid business, and the way the business is structured, many of the IC elements do not fit into neat categories. California has a 24 part common law test which overlaps with the 20 part IRS common law test. In the early 1990s CAPPS and the EDD met and crafted a 15 part "industry specific" regulatory test for process servers to set forth a bright line test for determining IC status, comparing the evidence of employee vs. IC status of a worker, and weight ascribed to those elements. California process servers are 1 of only 11 industries which have an "industry specific regulation." (Title 22, CCR, Section 4304-11) Others are Real Estate Salespeople, Home Healthcare Workers, Computer Service Workers, Artists, etc.

Here is summary:

Setting of Policies, Rules or Procedures of Conduct by Principal - Great Weight

Supervision - Great Weight

Reporting to Office and/or Contacting Principal - Great Weight

Training - Great Weight

Meetings - Great Weight

Existence of Contract - Not Conclusive of relationship

Right to terminate - Great Weight

Engagement in a Distinct Business - Great Weight, if server is in a distinct business from Principal, i.e., offering service to others or the general public

Required Level of Skill - Low Weight, but low level of skill indicated employee status

Duration of Service - Multiple short term assignments, rather than open ended duration indicates independence

Whether Principal Provides Instrumentalities, Tools, and Place of Work - If Principal provides tools (telephones, cars, radios, maps, etc.) or a place to wait in the office, that is an indication of employment

Custom in Industry - Low Weight, not conclusive

Method of Payment - Low weight, by the job or during specified pay periods is not conclusive

Belief of parties - Low weight, only implies intention of parties

I have published that regulation in my book but it is apparently only available through Thompson-West, in a law library or a California County Clerk's office or repository.]]> http://www.4thcorner.com/4thcorner/WebSite/C4PSE_QA.nsf/dx/the-six-part-test-employee-vs-ic-part-1.htm?opendocument&comments#02012010121244AMDOM9AZ.htm Sun, 31 Jan 2010 12:57:27 AM -0500 Pat Bennett The Six Part Test - Employee vs IC - Part 1
You observations are right on point, I believe. I see nothing wrong with the way you interpret the difference between an IC and an employee. We need to just keep it simple - always comparing it to hiring a painter to do the house. You don't tell him when to come to work or how to paint or when to eat lunch or anything but you DO tell him you'll only hire him if he gets the job done in time for your party!]]>
You observations are right on point, I believe. I see nothing wrong with the way you interpret the difference between an IC and an employee. We need to just keep it simple - always comparing it to hiring a painter to do the house. You don't tell him when to come to work or how to paint or when to eat lunch or anything but you DO tell him you'll only hire him if he gets the job done in time for your party!]]> http://www.4thcorner.com/4thcorner/WebSite/C4PSE_QA.nsf/dx/the-six-part-test-employee-vs-ic-part-1.htm?opendocument&comments#01312010125727AMDOMA6Y.htm Sat, 30 Jan 2010 06:14:04 PM -0500 Robert c. Zornes What’s Happening in Olympia - 2010 - Part 1
That aside, one of the things he asked in his mailing is how can the state increase revenue. My reply, among items I suggested, is that political contributions should be taxed. This otherwise is free money candidates receive to essentially use as they wish. Imagine where some of that money goes--it ain't just in purchasing campaign signs or mailings.

I think it is a terrific idea if as many people who agree will send this same or a similar message to our representatives.]]>
That aside, one of the things he asked in his mailing is how can the state increase revenue. My reply, among items I suggested, is that political contributions should be taxed. This otherwise is free money candidates receive to essentially use as they wish. Imagine where some of that money goes--it ain't just in purchasing campaign signs or mailings.

I think it is a terrific idea if as many people who agree will send this same or a similar message to our representatives.]]> http://www.4thcorner.com/4thcorner/WebSite/C4PSE_QA.nsf/dx/whats-happening-in-olympia.htm?opendocument&comments#01302010061404PMDOM2AU.htm Mon, 25 Jan 2010 12:54:09 PM -0700 Robin Mullins Government and the Use of Independent Contractors
I don't understand what the State is doing in this case. Now my lack of understanding may be caused by a number of things, the most likely of which is a lack of information on my part. There is sure to be some piece(s) of information I (we) simply don't have as yet. When it becomes available I will make it known to everyone.

Stay tuned.]]>
I don't understand what the State is doing in this case. Now my lack of understanding may be caused by a number of things, the most likely of which is a lack of information on my part. There is sure to be some piece(s) of information I (we) simply don't have as yet. When it becomes available I will make it known to everyone.

Stay tuned.]]> http://www.4thcorner.com/4thcorner/WebSite/C4PSE_QA.nsf/dx/government-and-the-use-of-independent-contractors.htm?opendocument&comments#01252010125409PMRMUSHU.htm Mon, 25 Jan 2010 02:29:31 PM -0500 Matt Government and the Use of Independent Contractors http://www.4thcorner.com/4thcorner/WebSite/C4PSE_QA.nsf/dx/government-and-the-use-of-independent-contractors.htm?opendocument&comments#01252010022931PMDOMS2H.htm Thu, 21 Jan 2010 05:51:33 PM -0500 David Kopel E-Service of Process - Part 1
Certified Snail Mail

Regular Mail

Service of Process and

E-Service]]>
Certified Snail Mail

Regular Mail

Service of Process and

E-Service]]> http://www.4thcorner.com/4thcorner/WebSite/C4PSE_QA.nsf/dx/e-service-of-process.htm?opendocument&comments#01212010055133PMDOMVYS.htm Thu, 21 Jan 2010 03:20:22 PM -0500 Robert Dayton The Fallout from New York Continues
A process server's affidavit is their product.

You dilute your product at your peril.

Rob

Robert Dayton

LoyalDog Software

PO Box 350604

Jamaica, NY 11435

{ Link }]]>
A process server's affidavit is their product.

You dilute your product at your peril.

Rob

Robert Dayton

LoyalDog Software

PO Box 350604

Jamaica, NY 11435

{ Link }]]> http://www.4thcorner.com/4thcorner/WebSite/C4PSE_QA.nsf/dx/the-fallout-from-new-york-continues.htm?opendocument&comments#01212010032022PMDOMT2A.htm Thu, 31 Dec 2009 11:48:13 AM -0500 Robert DeFilippis E-Service of Process - Part 2
Some of the comments allude to the fact that there could be an entirely new group of folks who decide (opt-in) to accept process electronically. In essence, this becomes another form of waiver and acknowledgment. Granted this concept is best suited for business entities in general, there will always be a certain group of individuals who decide accepting service electronically is better than dealing with a process server.

So yes, process serving as we know it will continue to exist going forward but my point is that there could possibly be another segment of our business displaced by technology. The process serving pie (if you will) has continually gotten smaller each passing decade starting with Rule 4 allowing service via US Mail and then continuing with the widespread practice of mailing or faxing (now emailing) subpoenas for business records. Add to this opposing counsel service that now can be done electronically.

I appreciate your ruminations - keep them coming!

-Robert]]>
Some of the comments allude to the fact that there could be an entirely new group of folks who decide (opt-in) to accept process electronically. In essence, this becomes another form of waiver and acknowledgment. Granted this concept is best suited for business entities in general, there will always be a certain group of individuals who decide accepting service electronically is better than dealing with a process server.

So yes, process serving as we know it will continue to exist going forward but my point is that there could possibly be another segment of our business displaced by technology. The process serving pie (if you will) has continually gotten smaller each passing decade starting with Rule 4 allowing service via US Mail and then continuing with the widespread practice of mailing or faxing (now emailing) subpoenas for business records. Add to this opposing counsel service that now can be done electronically.

I appreciate your ruminations - keep them coming!

-Robert]]> http://www.4thcorner.com/4thcorner/WebSite/C4PSE_QA.nsf/dx/e-service-of-process-part-2.htm?opendocument&comments#12312009114813AMDOMNVP.htm Mon, 28 Dec 2009 01:15:45 PM -0500 Matt Klein E-Service of Process - Part 2 http://www.4thcorner.com/4thcorner/WebSite/C4PSE_QA.nsf/dx/e-service-of-process-part-2.htm?opendocument&comments#12282009011545PMDOMQLE.htm Sat, 26 Dec 2009 09:41:16 PM -0500 Mark Adams E-Service of Process - Part 2
I think the biggest issue though for the courts is jurisdiction. If someone sends me an e-mail and I'm not at my home, or my home is in a different state or country how can the court establish that it has jurisdiction. One can open a personal e-mail account anywhere in the world or for that matter in orbit around the Earth. If you open your lap top while on a flight from Seattle to New York at what point would a court in Whatcom County have jurisdiction? While over Washinton? Because you opened your account while still in Washington state? Or no jurisdiction at all because you aren't in the county of Whatcom. Would some sort of automated response be sufficient that the person one is trying to serve opened the e-mail? Would that be enough for the average person to realize what it this is, and not assume it's some Nigerian scam? Someone's IP address doesn't really have a physical geographic location. While all the crime shows show the detectives using IP's to track back to the criminals location that is tv and not reality.

There is also the problem of knowing just who actually owns a specific account. This is information that most ISP's are only willing to share if you subpoena them, or for a price and that still might not be enough that you know the person you want to serve actually is the owner of said account. It also leaves open the question as to if you can serve someone over an account their employer owns but they use. In this instance you probably will know the account goes to the right person, but unless they agree to accept service (and they may not because they don't want their employer to know) it's not likely this type of service will be ok with the courts. You can't serve someone by mail at their employer at least not in Washington state, not without a change by the legislature. A change that I doubt the legislature will make anytime soon.

I don't think service by e-mail except by some folks who would accept service in that manner as useful. After all these are the folks most likely to come down and pick up service from a process server or the opposing attorney. Or just say mail it to me, and they will sign and return the letter accepting service. While electronic service would seem to be a cheap way to server folks it would likely be misused and abused, by the folks wanting service, the folks doing service, and folks being served particularly those wishing to avoid service. That last group being the least common denominator that the courts will have to look at to determine how useful e-service is opposed to an individual presenting service to them.

There will also be those folks that simply can't be served by electronic means. No computer access temporarily or pernamently. No computer, phone, or cell phone. No power. Folks who are true luddites. Folks who are Amish or belong to a religion with similar strictures. 16th Amendment says you can't treat these folks differently, nor can other people be treated differently from them. Nor can you force them to have a computer, a form of e-service, or even a mail-box.]]>
I think the biggest issue though for the courts is jurisdiction. If someone sends me an e-mail and I'm not at my home, or my home is in a different state or country how can the court establish that it has jurisdiction. One can open a personal e-mail account anywhere in the world or for that matter in orbit around the Earth. If you open your lap top while on a flight from Seattle to New York at what point would a court in Whatcom County have jurisdiction? While over Washinton? Because you opened your account while still in Washington state? Or no jurisdiction at all because you aren't in the county of Whatcom. Would some sort of automated response be sufficient that the person one is trying to serve opened the e-mail? Would that be enough for the average person to realize what it this is, and not assume it's some Nigerian scam? Someone's IP address doesn't really have a physical geographic location. While all the crime shows show the detectives using IP's to track back to the criminals location that is tv and not reality.

There is also the problem of knowing just who actually owns a specific account. This is information that most ISP's are only willing to share if you subpoena them, or for a price and that still might not be enough that you know the person you want to serve actually is the owner of said account. It also leaves open the question as to if you can serve someone over an account their employer owns but they use. In this instance you probably will know the account goes to the right person, but unless they agree to accept service (and they may not because they don't want their employer to know) it's not likely this type of service will be ok with the courts. You can't serve someone by mail at their employer at least not in Washington state, not without a change by the legislature. A change that I doubt the legislature will make anytime soon.

I don't think service by e-mail except by some folks who would accept service in that manner as useful. After all these are the folks most likely to come down and pick up service from a process server or the opposing attorney. Or just say mail it to me, and they will sign and return the letter accepting service. While electronic service would seem to be a cheap way to server folks it would likely be misused and abused, by the folks wanting service, the folks doing service, and folks being served particularly those wishing to avoid service. That last group being the least common denominator that the courts will have to look at to determine how useful e-service is opposed to an individual presenting service to them.

There will also be those folks that simply can't be served by electronic means. No computer access temporarily or pernamently. No computer, phone, or cell phone. No power. Folks who are true luddites. Folks who are Amish or belong to a religion with similar strictures. 16th Amendment says you can't treat these folks differently, nor can other people be treated differently from them. Nor can you force them to have a computer, a form of e-service, or even a mail-box.]]> http://www.4thcorner.com/4thcorner/WebSite/C4PSE_QA.nsf/dx/e-service-of-process-part-2.htm?opendocument&comments#12262009094116PMDOM6CD.htm Thu, 10 Dec 2009 09:48:50 AM -0500 Robin K Mullins IVIPS Audit - Part 1.5 http://www.4thcorner.com/4thcorner/WebSite/C4PSE_QA.nsf/dx/ivips-audit-part-1.5.htm?opendocument&comments#12102009094850AMDOMLK3.htm Thu, 10 Dec 2009 09:27:35 AM -0500 MaryLee Rustand IVIPS Audit - Part 1.5
Sorry to sound dumb, but my mind is doubting my own thoughts right now and I want to be clear for everyone's sake.]]>
Sorry to sound dumb, but my mind is doubting my own thoughts right now and I want to be clear for everyone's sake.]]> http://www.4thcorner.com/4thcorner/WebSite/C4PSE_QA.nsf/dx/ivips-audit-part-1.5.htm?opendocument&comments#12102009092735AMDOML5S.htm Wed, 9 Dec 2009 05:50:01 PM -0500 Robb Woodworth IVIPS Audit - Part 1 http://www.4thcorner.com/4thcorner/WebSite/C4PSE_QA.nsf/dx/ivips-audit.htm?opendocument&comments#12092009055001PMDOMVXT.htm