NuMSP misclassifies employees
Concealment to remove
posted by Keith Purtell - pub Feb. 5, 2022
Hey, Krystal! If there is no connection between all the timesheets I submitted and what I was paid, then why did you or Jeff reduce my ConnectWise hours for PetroSource? If this question is perplexing, then get in touch with Lyndon Laemmerhirt, NuMSP VP of Finance. He's a highly-paid expert.
|What is a 'contractor'?|
Originally, a contractor was a person who ran their own small business, found health care, and controlled their own vacation and sick leave. They earned enough to set aside money for unemployment, and earned enough to set aside money for income tax. The contractor was a smaller business that worked for a larger business.
A contractor's service has no visible connection with the normal activities of the larger business. Example: Selling hot dogs outside a brain surgeon’s office.
The mental image was a super-entrepreneur with funding and business savvy. To this day, words like “entrepreneurial opportunity” show up in documents about contractors. Of course, there is undoubtedly a tiny minority of operators who fit such a description. For this small group, someone invented the IRS 1099 form.
It didn't take long for unsavory employers to realize they could use the 1099—designed for fully-funded entrepreneurs—to remove worker legal protection and cut financial corners: Misclassification. This literally hurts our nation. (Cost of misclassification; new tab/window)
U.S. Dept. of Labor: "Misclassification denies employees access to critical benefits and protections they are entitled to—overtime, the minimum wage, family and medical leave and, in some cases, safe workplaces. It generates substantial losses to the U.S. Treasury and the Social Security and Medicare funds, as well as to state unemployment insurance and workers' compensation funds. It cheats every taxpayer. It undermines the entire economy. In fact, the misclassification of employees as independent contractors presents one of the most serious workplace problems in our economy today."
In short, "misclassification" is a polite word to describe predatory employers stealing money and stripping working Americans of legal protections.
Misclassification illegally deprives workers of basic rights, protections, and benefits guaranteed to employees such as: 1-The right to be paid minimum wage, 2-The right to overtime pay, 3-Time and mode-of-pay protections, 4-Protection against illegal deductions from pay, 5-Unemployment compensation, 6-Temporary disability benefits, 7-Family leave insurance benefits, 8-Workers’ compensation, 9-Family leave and earned sick leave.
Cheating employers bypass the Fair Labor Standards Act, says this EPI article on "(In)dependent Contractor Misclassification" (new tab/window)
Harvard Business Review states that employment "... is inevitably an unequal bargaining relationship" and people deserve to be protected. (new tab/window)
It gets worse
The United States Court of Appeals for the Eighth Circuit recently ruled that independent contractors are not protected by the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), and the Family and Medical Leave Act (FMLA), according to labor lawyer Raymond R. Rinkol, Jr.
So, for any employer who really, really wants to screw his employees, one easy way to do that is to find a way to make them into "contractors."
Tragically, many workers who should be classified as employees simply do not realize that they have been wrongfully classified as independent contractors [new tab/window]. Employers have enormous advantage over marginalized people. If the job applicant is of color, or female, or LGBTQ, or a non-Christian, or older than 40, they are already struggling to find employment. Some employers simply won't hire anyone who is marginalized.
Others look at the struggling job-seeker and see opportunity. They hire that person who is grateful to finally get a job and then subject the worker to abuse. It's an offensive lack of ethics.
Another ploy is to create a new category of marginalized person—like "contractor"—and then find a way to shoehorn people into that category. The employer can then say "I don't have to be fair or honest with John Doe because he's a contractor. Everybody knows contractors don't have rights, and contractors don't deserve to be paid."
Relevance? My last employer—Realize owner Jeffrey Scott Woods—said on my first day May 22, 2017, that my job would be part‑time until sales increased.
And, during the first several weeks, his Office Manager Krystal Staring walked over to my desk to instruct me on how to submit the company's standard paper timesheets. She showed me where to find the Excel spreadsheet all the techs used. She then said "Your tax forms will look different than what you are used to, because Jeff is running Luke 5 as a DBA." [ "Luke 5 Marketing" was the original operating name Mr. Woods created for his new Web Services department. He eventually abandoned the practice. ]
Note that Web Services were always advertised as a department; an integral part of Realize Information Technology; never as an outside business or as outside their computer business. Here's a link to their website on that, and also a PDF version in case the web page mysteriously disappears.
Also: Management at Realize Information Technology (NuMSP) never spoke about or documented any of the other employee categories: Full-time, temp, seasonal, contractor, intern.
What is "criminal" and what is not? Does having lots of money make a person immune from criminal prosecution? Is there a category of people with a "right" to perform criminal actions? What kind of person enjoys making another human being a crime victim?
Crimes are considered offenses against the state, or society as a whole. According to workingnowandthen.com: "Yet there's still a massive gap between the wage theft recoveries reported by government agencies and estimates for how much employers underpay their employees. According to a 2014 report from the Economic Policy Institute, the true cost of wage theft is more like $50 billion a year."
Crimes by employers against employees not only harm individual American workers; they also lower morale and trust throughout society.
Offenses against the state
That means that even though one person might murder a particular person, the murder itself is considered an offense to everyone in society. Accordingly, crimes against the state are prosecuted by the state. The prosecutor (not the victim) files the case in court as a representative of the state.
This has attracted the attention of corrupt businessmen and business groups, who have watered down laws and interfered with prosecutors and districts attorney, all to make white-collar crimes something rarely punished. (The Social Acceptability of White Collar Crimes in America, by Joseph P. Martinez; Eastern Michigan University)
If it were a civil case, then the wronged party would file the case.
- Anti-social values: This is also known as criminal thinking. It includes criminal rationalization or the belief that their criminal behavior was justified. Individuals possessing this trait often blame others for their negative behavior, and show a lack of remorse.
- Criminal Peers: Individuals with this trait often have peers that are associated with criminal activities. Most are often involved with substance abuse including drugs or alcohol. Peer influence often persuades the individual to engage in criminal behavior. They will also typically present with a lack of pro-social community involvement.
- Anti-social personality: These traits often include atypical behavior conducted prior to the age of fifteen and can include, running away, skipping school, fighting, possessing weapons, lying, stealing and damage to either animals or property.
- Low self-control: This involves one’s ability to control temperament and impulsivity. People that carry this trait often do things that they didn’t plan, and will fail to think before acting. The mindset is of the here and now, and not on the consequences of the behavior.
“I am a thrill seeker.”
“I like to get revenge on authorities.”
“I never feel guilty.”
“People who mess with me always regret it.”
If you think any of the statements above describe you, then you most likely have a tendency to display antisocial, callous and reckless behaviors. According a study dating back to 2010, there were at least three times as many psychopaths in executive or CEO roles than in the overall population. But more recent data found it’s now a much higher figure: 20 percent.
Narcissism involves an unrealistic sense of grandiosity and superiority, manifested in the form of vanity, self-admiration and delusions of talent. Here are the main characteristics of narcissistic and toxic bosses:
- They often crave validation and recognition from others. This is primarily because their self-esteem is high but fragile. Bosses who constantly show off are probably desperate for others’ admiration.
- They tend to be self-centered. This means they’re generally less interested in others and have deficits in empathy. For this reason, they are rarely found displaying any genuine consideration for people other than themselves.
- They have high levels of entitlement. Narcissists commonly behave as if they deserve certain privileges or enjoy higher status than their peers enjoy.
2017 $8,034.11 2018 $12,450.55 2019 $16,782.45 2020 $19,468.82 2021 $8,871.65 ---------------- $65,607.58 TOTAL divided by $25/hour 2,624.30 hours workedI know each yearly salary looks low, but please remember I believed that I was helping my friend-from-church launch his new Web Services department. I believed his success would also be my success.
General (physical evidence)
Working for Realize/NuMSP was my only job during the full term of my employment. (tax forms)
Paid (physical evidence)
Realize/NuMSP (managed service provider) paid me at both fixed and hourly rates. Building a new website was fixed-fee, but projects like CarePrecise, monthly newsletter, website maintenance and assisting the hardware techs were hourly. (daily paper timesheets, daily digital timesheets in ConnectWise, and a price sheet)
Financial control (physical evidence)
I was initially paid out of a bank account the owner set aside for "Luke 5 Marketing" which was a DBA for this employer. Jeff Woods (Realize owner) tired of doing web services as a DBA and folded it into Realize, and apparently used a regular business account. The Realize/NuMSP attorney made a great deal of noise about these bank accounts, but I was never made aware of behind-the-scenes accounting and cannot be held responsible. The Realize/NuMSP attorney responded to my wage claim by telling the Oklahoma DOL that "Realize and Mr. Purtell did not use paychecks or paystubs."
So, I sent the DOL images of several paychecks and paystubs sent by Realize/NuMSP. Suddenly, the Realize/NuMSP attorney was silent on the topic. (paychecks, paystubs)
Financial control (physical evidence)
Realize/NuMSP (managed service provider) asserted that I did not report my time as did other employees. But, I subsequently submitted 24 paper timesheets from the era before Realize/NuMSP had digital timekeeping. (I also provided screen captures of my timesheet maintenance within ConnectWise.) A former tech named Michael J. (full name withheld) looked at these paper timesheets and said it was "exactly" the same one used by other company techs.
Realize/NuMSP then asserted that I was only given a "template." But, each one bore distinct daily records of work I performed. The January 2019 timesheet below shows (fixed-fee and hourly) web services work for CarePrecise.com, Holder Total Security, Brookshire Benefits, G.C. Marketing, Realize Information Technology. Suddenly, the Realize/NuMSP attorney was silent on the topic.
If you look at the overview material submitted by the attorney, you'll begin to notice he seems to be trying to convince the Oklahoma DOL that I never did any hourly work. Additional companies for whom I did hourly work: FirstTee Tulsa and Luke 5 Marketing.
Although Realize/NuMSP seems to be working hard to deny existence of my hourly work, there's an entire column dedicated to that in my timesheets like the one below. There is a very specific reason the company is so nervous: A person who really is a "contractor" is paid a fixed fee or "flat rate" by the project not by the hour.Also as PDF (new tab/window) (timesheets)
Financial control (physical evidence)
NuMSP Human Resources manager Nicole Kelly in April of 2021 wrote to me, stating that local management had begun to describe me as a "contractor" behind the scenes, and that my employer should have admitted this when the local Realize office was purchased: "...you are still a contractor. This should have been disclosed to you at closing. Please send an invoice to your manager and email@example.com." Previous to the NuMSP purchase, this employer had paid me through the same submitted-timesheet method as all technicians. (email)
NOTE: This email is the closest thing to showing ethical standards to come out of NuMSP since this crisis emerged. Jeff Woods's and Krystal Staring's deliberate misclassification of me at Realize/NuMSP has been endorsed by most of the NuMSP executive management:
- VP of Finance Lyndon Laemmerhirt
- CEO/President/COO Jim Griffith
- Senior Manager, Finance and Operations Katie Kelly
- Financial Planning Analyst Parag Ramaiya
(I'm not clear about VP of Operations and co-founder Adam Jacob Muller, who was a witness to me taking multiple steps to see that the PetroSource "accountingforenergy.com" website was properly completed, but has since gone silent.)
One good thing came out of this HR email. After I received it, I opened Outlook and did a search of four years of email traffic, looking for the word "contractor." There was only one mention: This email from Kelly.
Financial control (physical evidence)
Realize Accountant/Office Manager Krystal Staring admitted in a Jan. 6, 2022 letter to the Dept. of Labor that she had created several invoices purporting to represent me. NuMSP had told the office manager and Mr. Woods that in order to have correct procedure, there had to be invoices from said worker. So, Krystal Staring created them herself to avoid a conversation with me where she might have to reveal that she and Jeff Woods had set up the 1099—not because Web Services was originally set up as a DBA—but because they wanted to strip me of all legal protections and basic rights. Up until April of 2021, neither I or this employer had discussed or used invoices; only my submitted timesheets. Office manager: "I then used this information to create invoices/bills on his behalf for accounting recording purposes..."
Essentially, Jeff Woods and his office manager were so eager to make me a "contractor" and then subsequently steal my wages that the office manager made up the invoices and sent them to NuMSP.
Except for the Oklahoma Dept. of Labor, there is not a legal authority in the nation that would tolarate this kind of shenanigans. (letter)
Tools, materials (physical evidence)
Realize/NuMSP attorney Stephen R. Clouser kept insisting that I only used equipment that was my personal property. Yet, Mr. Woods provided me the standard company technician's desk, chair and PC with Windows installed. This was inside the lobby area of the second floor of the normal location in Tulsa. Not remote.
For four years, my Realize managers, Realize co-workers, Realize clients, and delivery people saw me at that desk. I wonder if Realize/NuMSP attorney Clouser is relieved that the Oklahoma DOL halted the normal process before all these people could be called as witnesses.
Well, at least he got paid. That's more than I can say for myself.
About two years later I purchased two ergonomic items (tall chair, monitor riser) to alleviate pain. Said chair and riser stayed at my office inside the normal Realize location on Harvard Avenue in Tulsa, because that's where I worked. I took home these two items and no others in late August 2021, after submitting two-week notice on Aug. 17, 2021. (emails, photos*)
Clients (physical evidence)
Realize Information Technology arranged all web services clients through existing client contacts (list below; one exception in 2019). Realize customers had been asking about web services for years, according to Mr. Woods during his recruitment process, so his customers certainly thought of this as part of regular Realize/NuMSP "computer" business.
And, the times I helped the hardware techs were smooth due to the close relationship of our computer skills. It's worth noting how I was presented to clients: As the Realize employee doing web work for Mr. Woods's new department. Here is a flyer the owner sent out to their mail list to get the ball rolling (PDF new tab/window). No mention of an outside company or contractor.
|Websites built at Realize (NuMSP)|
|505architects.com||J.Woods's "Realize" sales call|
|accountingforenergy.com||J.Woods's "Realize" client PetroSource|
|adhdok.com||J.Woods's "Realize" client|
|bancsearch.com||J.Woods's "Realize" client|
|bennettcahill.com||J.Woods's "Realize" client|
|brookshirebenefits.com||J.Woods's "Realize" client|
|dirtbusterssweeping.com||Owner friends with "Realize" customer|
|elderpaint.com||J.Woods's "Realize" client|
|nextlevelhealthok.com||J.Woods's "Realize" client|
|newbcounseling.com||Owner related to "Realize" customer|
|phillipsgomez.com||J.Woods's "Realize" client|
|soonertaxservice.com||J.Woods's "Realize" client|
|stonebridgegroup.net||J.Woods's "Realize" client
|Revisions and maintenance:|
|firstteetulsa.org||J.Woods's "Realize" client|
|holdersecurity.com (maint+SEO)||J.Woods's "Realize" client|
|onesourceoccmed.com (static site)||J.Woods's "Realize" client|
|realizetech.com (maint+SEO)||Internal now controlled by NuMSP web team.
|Conversion to mobile-ready:|
|careprecise.com||External referred by K. Purtell to J. Woods|
Length of relationship (physical evidence)
I worked for Realize/NuMSP May 2017-Aug 2021 (4 years 3 months) to further Mr. Woods's ambition to respond to numerous client requests for help with web services. (tax forms, emails)
Employee definition/type (testimony, physical evidence)
Mr. Woods's recruitment pitch did not mention a specific employee definition, but I knew he had seen my LinkedIn profile showing I only worked for full-time employers. However, on May 22, 2017, my first day at the new job, Mr. Woods said the job would be "...part time until Brent [salesman Brent Fields] gets the sales up." (Also, that there was enough office space for two additional web techs if things went well, and that the new Web Services department might someday be spun off as an independent business.) I referred to this part-time status in my one-year report, submitted to Mr. Woods on July 17, 2018: "More free time will give me a chance to find an additional part-time job."
Subsequent to my wage claim, Mr. Woods's attorney introduced a term never before mentioned by Realize management in four years: "contractor." This word was scattered through the company's submissions to the Department of Labor, sometimes in paragraph after paragraph.
Who would go along?
Folks, who would go along with giving up all your rights for the enrichment of a business owner? That's what happens when you are labeled a "contractor" in the United States.
So, if you were looking for work, and an employer walked up and said "I've got an opportunity for you, but you'll be giving up all your legal rights to be a contractor. Oh, and no health care in the midst of a global pandemic and no vacation and no unemployment insurance."
Would you be interested in a "contractor" role? No. Of course not.
Telling me that he was planning to make me a "contractor" would have ruined Jeff Woods's chances of getting a qualified web developer at a two-thirds discount (using the "admin time" device). Being truthful about management's intent would have discouraged me from accepting the job offer.
The same applies to the fact that the boss never offered a written contract, as is strongly advised whenever the intent is to hire an outside vendor. A written contract would have leaked deal-killing details.
Work when (physical evidence)
Realize/NuMSP (managed service provider) directed me to coordinate all work with the admin person who scheduled all the technicians. At first, the company accountant/office manager directed me to use the same paper timesheet as all the other technicians. Later, when the company switched to ConnectWise Manage, I and the other techs all began entering our timesheets in that digital system. (emails, timesheets)
Work where (testimony, cross-reference)
Realize/NuMSP directed me to work with the other technicians at their normal place of business on Harvard Ave in Tulsa. After COVID, I asked to work about two days per week remotely and was granted permission. (cross-reference emails with testimony)
Work performed how (testimony)
Mr. Woods had told me he worked on a very complex education website early in his career, but was not up-to-date on website tools, and allowed me to choose whatever free software might be downloaded. (He refused to budget professional software.) It's possible that this could be interpreted as more contractor than employee.
Services offered (physical evidence)
Mr. Woods gave me a list of services most likely to appeal to his clients (web development, SEO, social media management, reputation management, etc.) and directed me to type it up. He or someone under his control also typed up a spreadsheet version of that document, stored in the same folder. (price list)
Behavioral control (physical evidence)
Mr. Woods had a very confident leadership style and expected all technicians to pay close attention to instructions, as was his right as our boss. He determined which clients would get web services, where I would work, and my hours. Because I was not full time (problems with sales), I was allowed latitude on hours, as long as the day's scheduled tasks were completed. (emails, testimony)
Relationship with employer (physical evidence)
This collection of 35 emails with Mr. Woods (or the company's scheduler) showing the tone of the relationship and my deferring to his authority. These were only available to me due to "COVID days" or "bad weather days" when I worked from home. This is not all of such emails available, as I imposed a limit for the benefit of Oklahoma DOL. (emails)
Financial control: Forcing employee to work off the clock (physical evidence: emails)
Forcing employee to work off the clock
Direct question to Realize/NuMSP attorney Stephen R. Clouser:
"Does your client intend to fall back on the existing climate at Realize; that in a situation where a client makes additional requests that exceed the norm, the employee must take an in-place pay cut or demotion? I ask this partly because I am starting to believe Mr. Woods did in fact ignore my advice (during and subsequent to the 505 Architects project) to adopt known industry-standard remedies; either communicate with the client about the time overage, or establish a maximum-revision policy and enforce it consistently."
"I am ready to believe that he did not establish such a policy and wants instead for a Realize worker to 'eat' the cost of client behavior that is outside the control of said worker. One reason the '505' incident is so well remembered is that the client's excessive revision requests forced my wages from $25 per hour to less than $10 per hour. Here is another display of how this in-place pay cut works...
Employee share of fixed-fee $750:
30 hours worked is $25/hour
40 hours worked is $18.75/hour
60 hours worked is $12.50/hour"
|Financial control|| The lack of sales and the employer's aggressive policy on "admin time" left me with a net loss of approximately $92,500 (based on total hours at my desk working on web services). The amount sought in the wage claim is only about $2,098, while Realize/NuMSP has spent at least $4,000 in attorney fees to avoid paying for my completed work-hours. My yearly income during this time varied from $8,034 to about $19,468. The federal poverty line is $12,880 for a single individual.
At my second I.T. job in 2004—the first one to involve coding—I earned $49,000 peak yearly salary. But, I re-entered the job market past age 40, and my income has declined steadily since then. Placing this in perspective: Typical yearly salary for a Tulsa-based web developer age 20-40 is $72,000 (Robert Half salary report). My post-40 average yearly salary has been $13,121 (2017-2021 at Realize/NuMSP). That's an 81.7% penalty for being past 40.
According to Indeed.com, "Average NuMSP IT Support yearly pay in the United States is approximately $48,544, which is 8% below the national average." A part of me hopes that the leadership at NuMSP thinks Mr. Woods grossly underpaid his web developer. But, after seeing how NuMSP managers have responded to the wage dispute, another part of me suspects they found Jeff Woods's strategy to be clever.
It's true that the last job was part‑time but remember that Mr. Woods refused to hire a salesperson to replace Brent Fields, and also that employers can trap marginalized workers in sub-standard jobs. Ageism is the underlying factor.
Mr. Woods is paid about $105,000 yearly (± $10,000).
In companies using the business model of "billable hours," admin is typically one‑third of total hours. Jeff Woods's aggressive policy: "If a customer signed a service agreement and gives us written instructions for work, that's billable. Everything else is admin time." One flaw in this was that it placed internal decisions like purchasing software into the hands of clients; it was impossible. As a result, two-thirds of my work hours ended up being unpaid. Web services did not exist at Realize when I showed up for work. So, there was a large amount of "admin time" just building the software, procedural and document infrastructure, and Jeff Woods got most of it for free.
Management ignored my written and verbal reports about serious concerns. Quitting the job meant going back to another 1.5‑year search with little or no income. I decided instead to pursue success in web services, and get my weekly hours up to 40 (full-time).
Dates of written and verbal reports:
|Evidence type||Face page key notes|
|Overview (Oklahoma DOL record)||Jan. 27, 2022: On the face page for my last reply to the Realize/NuMSP (managed service provider) corporate attorney, I touched on some key points. This was in regard to discrepancies between items as they were in the system before the NuMSP acquisition and how they appeared on the new corporate server after the acquisition:
|1099 land mine|
|In retrospect, several things are obvious: setup, confirmation, detonation.
State of Oklahoma:
"Whether an employer misclassifies an employee is an IRS matter. Our agency does not make those determinations as it has to do with whether taxes are deducted or not deducted. Our agency has no jurisdiction over tax issues." —Oklahoma Dept. of Labor (Nov. 8 2021)
Version II (2 months, 27 days later)
CONTRACTOR: "The conclusion is the documentation does not present sufficient evidence of an employer/employee relationship and presents that of an independent contractor relationship. As an independent contractor, our agency has no jurisdiction to resolve your disputes. The proper venue would be small claims court. This claim is now closed and becomes a public record pursuant to the Open Records Act of Oklahoma." —Don Schooler, General Counsel Chief of Staff; Daniel Mares, Attorney III (Feb. 4, 2022)
Possible reasons for decision?
Considering the months of work gathering and submitting evidence, "CONTRACTOR" was a shock. Here are a few guesses:
- Payback In August of 2016, I participated in an OESC hearing requesting unemployment insurance. The hearing officer suspended my right to call witnesses and also suspended my right to have my documentation be included in consideration, which enabled a favorable decision for the former employer (temp agency). I then published an article about this and distributed a link on social media. There is a real possibility that upper-level managers in state government remember that, and noticed my name on this recent wage claim.
- Politics National political conflict has not spared Oklahoma. The dominant politicians are fiercely anti-worker, possibly due to campaign contributions from the business-owner community. There are plenty of historical examples of government employees losing their jobs due to politics, and Department of Labor managers may justifiably feel that they need to avoid "pro worker" activity.
- Intervention As nearly as I can tell, the back-and-forth between me and the Realize/NuMSP attorney was about 50-50 in terms of who was "winning." Hypothetically, an executive manager with NuMSP could have contacted an Oklahoma senator or representative. Influencing politicians can be remarkably easy.
- Overwhelmed A variety of state agencies have been hammered by COVID. If something about my wage claim was going to place an extra load on the system, it may have made sense to simply kick it back to me.
- Amount of evidence I submitted scores of files between October 2021 and January 2022; well over 100 and sometimes additional corrected versions. This may have consumed the time available.
NOTE: Oklahoma DOL received advanced notice of this document in case they needed to correct factual errors (so far, I've only had to remove the name of a DOL employee no longer employed there).
For general reference, here are the rules supposedly followed when the state does consider such questions:
Oklahoma Department of Labor
Current as of January 14, 2019
- (A) the nature of the contract between the parties, whether written or oral;
- (B) the degree of control which, by the agreement, the employer may exercise on the details of the work or the independence enjoyed by the contractor or agent;
- (C) whether or not the one employed is engaged in a distinct occupation or business for others;
- (D) the kind of occupation with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
- (E) the skill required in the particular occupation;
- (F) whether the employer or the workman supplies the instrumentalities, tools and the place of work for the person doing the work;
- (G) the length of time for which the person is employed;
- (H) the method of payment, whether by the time or by the job;
- (I) whether or not the work is a part of the regular business of the employer;
- (J) whether or not the parties believe they are creating the relationship of master and servant, and
- (K) the right of either to terminate the relationship without liability. No one factor is controlling, and the relationship must be based on the set of facts peculiar to the case.
|Evidence type||Employee (blue background) or Contractor (red)|
|Tools (physical evidence)|
|While waiting for a submission to Oklahoma DOL to be processed, I came across several related items in this table.
The attorney for Realize/NuMSP (managed service provider) kept insisting that I worked from home. First, a Feb. 1, 2021 video by KJRH in Tulsa about online job scams. Their crew stopped by Realize/NuMSP to interview Mr. Woods, and in the process shot footage of Mr. Woods, followed by me at my standard-issue desk and PC that was property of Realize/NuMSP. (*images below from said video) (© 2022 Scripps Media, Inc)
YouTube link KJRH Channel 2 (new tab/window)
|Data integrity (physical evidence)|
|When I submitted my two-week notice to NuMSP Human Resources on Aug. 17, 2021, the email contained the following text about a large hourly project called CarePrecise. It's important because of the extreme measures Realize/NuMSP went to asserting my employment was entirely fixed-fee/flat rate, as is the case with "contractors.":
"August 3, 2020, I was in a meeting with Jeff Woods and [scheduler] regarding an hourly project to make the CarePrecise website mobile ready. As they spoke, I realized they planned to cut my wages by either docking the time or by removing support for any time that went over a rough estimate I had provided to the client. This had happened at least once before, with a company named 505 Architects."
The attorney's Dec. 20, 2021 text contains numerous efforts to cast/typify CarePrecise as a fixed-fee/flat rate i.e. "contractor" job. I have indicated each instance of this and other problems with a NOTE:
"Mr. Purtell claims against Realize on the CarePrecise project. He appears to be demanding he be paid time he actually chose to use, rather than the time used to calculate the flat rate price of the project. [NOTE: My wage claim clearly states that the one problem with CarePrecise was that an administrative person told me that a manager had allegedly manually reduced my hours. Nothing else.] Please note that he claims he was to be paid September 11, 2021, or "11 days after last day." He appears to be demanding he be paid time he actually chose to use, rather than the time used to calculate the flat rate price of the project. [NOTE: The 11 days reference is Oklahoma state law regarding how long employers have to deliver wages to an employee: "Employers must set regular pay dates within eleven (11) days of the end of the pay period." —OK Statute 40-5-165.2 ] Yet, he demands payment based on what he admits he now estimates for additional compensation exceeding the agreed flat dollar amount rate. [NOTE: There was no flat or fixed rate for the hourly CarePrecise project. ] He was timely paid for his last work on the CarePrecise project. Documents concerning CarePrecise are enclosed.
A note about "spending more time" and "upside down on the time": The only time Realize/NuMSP management told me they felt my time management needed tweaking was the Aug. 3, 2020 meeting where they at first talked about altering my ConnectWise time sheets but then switched to discussing an enhanced plan to pre-arrange hours with clients.
Realize Invoice #1481 of June 30, 2020, to CarePrecise was for another web page update, after which the client paid Realize July 6, 2020. Upon receipt of payment, Realize included his agreed one‑third (1/3) [NOTE: There was no talk of 1/3 of anything during my full span of employment at Realize, and nothing like that was in our price sheet.] when paying Mr. Purtell Realize general account check 5093, Again, Realize and Mr. Purtell did not use paychecks or paystubs. [NOTE: After I read this and submitted scanned paychecks and paystubs, the attorney suddenly became silent on this topic. Oh, and in the first response from said attorney, his 30 pages of supporting CarePrecise documents included scans of paychecks and paystubs.], and per agreement of Realize and Mr. Purtell, he was not to be paid and was not paid until the project client had first paid. [NOTE: Use of the phrase "until the project client had first paid" is stage-setting similar to use of the word "completed." More on this later.]
At this point, the attorney has prepared a "contractor" narrative. The problem with that is that I entered my CarePrecise hours each day in ConnectWise. The number of records there, the amount of detail, and the contents of all those months of records would have disproved the attorney's theory. What to do? The answer is in bold text in the following:
Realize Invoice #1531 to CarePrecise on August 11, 2020, was for Phase 2 modifications to existing website, at $75.00 per hour [Notice the hourly rate.], paid by client August 12, 2020. August 20, 2020, that project was itemized to Mr. Purtell and he was paid his agreed one‑third (1/3) share August 24, 2020, by general account check 5114. In that instance, the client had 88 web pages, each of which needed to be corrected to appear on mobile devices. Mr. Purtell claimed his correction would require an hour per page, resulting in the 88 hours to which the client agreed before work began.
Two possibilities here: 1-The attorney hopes the Oklahoma DOL will believe that months of daily digital timesheets suddenly became one timesheet without any help from a person, or 2-Someone with admin rights inside ConnectWise—such as a manager—actually compressed all those daily timesheets into one. Also, the CarePrecise project was divided into phases as revealed above, after which the client paid. There was no waiting until the entire thing was completed before the client received an invoice. The attorney himself submitted records of multiple CarePrecise payments during the months I was working on the site modifications.
The following is from my last reply to the Realize/NuMSP (managed service provider) attorney:
Search destroyed time sheets on DuckDuckGo...(new tab/window)
|Financial control (physical evidence)
From my wage claim correspondence:
The two projects "not completed" and for which Jeff Woods refuses to pay for my completed work‑hours are PetroSource and StoneBridge Group (that I know of). In both cases, the incomplete status was/is outside my control. The PetroSource website was 1-Delayed by efforts to get responses from our busy client during construction, and 2-Withheld from the NuMSP web team (or withheld from any qualified developer). This site was mostly done and awaiting PetroSource review of their Careers page as well as a stable "developer link" from the hosting service SiteGround. Handing off a web project is no different than the same handoffs Realize does every day among their hardware techs.
This site also was/is mostly complete. My web development at Realize was administered by Jeff Woods, who also had personal connections at StoneBridge Group. When they did not submit all the files needed for completing their website, Jeff Woods kept telling me that he would talk to them about it. The delays and excuses went on for months.
The creative Realize/NuMSP use of the word "completed" has led to my current unpaid wages; a direct violation of state law (new tab/window).
"There are no circumstances under which an employer can totally withhold a final paycheck under Oklahoma law"—LawInfo.com (https://www.lawinfo.com/
"An employer can be assessed a penalty of two percent (2%) liquidated damages for each day the payment of wages is overdue, up to the amount of the wages due."—Oklahoma Department of Labor ( https://www.ok.gov/
|Financial consequences of interference||
More than a year "completing"As noted above, two entire website projects were stalled by management. This was the tip of an iceberg.
Starting in about January 2020, management directed me to start setting aside time on Fridays for a Web Services Meeting, and to send them an agenda of ongoing work in advance of each meeting. One example from 2020 is below this text.
From looking at the agendas that I was able to retrieve, it's clear they began placing a number of money-making projects on hold. There was no clear reason given, but if I asked why, the response was along the lines of my boss needed to call someone first, or he was busy right now with something else, or he would request that our scheduling person remind him later, etc.
Since my boss was our only salesman and also the primary contact with web services clients—who were also his existing hardware/networking clients—he was able to bring things to a grinding halt. I have no idea how much money we lost.
This puts the assertions of NuMSP VP Lyndon Laemmerhirt in fresh perspective: "... his [Keith Purtell's] abrupt departure left us in a bind with customers expecting us to deliver on what Keith was supposed to produce but never did." Laemmerhirt blames an employee for actions taken by mid-level manager Jeff Woods.
Jeff Woods's unexplained delays stretched out for 20 months until I finally resigned. That was 1.8 years of me trying to complete my assigned projects! To me, it seems like a strange way to run a business. But, to the executive layer at NuMSP, this style of leadership was so attractive that they organized a dogpile; as illustrated in the section of this page; "Elites speak to us."
For the entire two weeks before my last day, Jeff Woods did not mention anything about incomplete websites. However he did talk about the NuMSP web team that took control of Jeff’s RealizeTech.com after NuMSP purchased Realize in early 2021. Knowing the technicians on the NuMSP web team were available became my focus as I wrapped up my website work between Aug. 17 and Aug. 31 of 2021.
WEB SERVICES (K. Purtell) WEEKLY PLANNING w/ Jeff Woods & [Scheduler]
1- Realize Information Technology site
RIT team/employee pictures for site (with Dakota) D5500 -Start week of the … At first, I couldn't see why this was endlessly delayed (never got done). Considering what has happened recently, I wonder about the risk of allowing employee pictures that might include me, and then having to frantically take them down if-and-when the boss and the office manager used the "1099 land mine"?
SEO landing pages bring in more business? JW: HOLD
Newsletter is underway …
Mobile background sizing (lame response FameThemes tech support ) JW: HOLD
Create sketch or mockup based on RR concepts about splash page SEO. JW: HOLD
iPad nav bar not normal -suggest test of existing code in RIT staging area. JW: HOLD
Button on splash to Contact Us with pre-populated subject line. (section-hero.php) JW: HOLD
Facebook image size ( older post; can’t change )
We may have to remove reCaptcha spam filter and use alternative. Will have to monitor for more spam.
1b- All WP sites… A) Charge for maintenance? B) stop updates from breaking sites C) stop updates completely. We now have a ticket and are starting this. (Turn off all plugin updates except Wordfence. I also need to find the steps to do similar with updates for themes and for WordPress itself.)
A- Client to select theme for new site (down to two choices by Nick Denison)? JW: HOLD
B- Begin the base build
3- 505 Architects additional enhancements or SEO JW: HOLD
A- Ready for staging area etc., email tests
B- Phase II - Work on new version of mid-section on splash page
C- Phase II - New instructions from Brian Thomas; downloaded new image library.
D- Brian responded "Not at this time" to query. I found out he had a Google tracking code for SEO but was not doing anything with it, so as a courtesy I pasted it into his website.
4- StoneBridge Group
A- Keith sent list of needed-to-complete items to Stonebridge. JW will contact
B- Target 40 hours work
5- PGI / SEO
A- PGI has started asking about SEO; prelim work done. SENT Walter a note and SEO doc. JW: HOLD
6- Business development for Realize Information Technology
7- OneSource - 9h per month.
A Text edits (plus two image changes); create new WordPress login first via FTP.
[Realize owner] suggested he and I go over website; general overview. Keep LIST handy/suggest edits.
8- Social Media Management
A Social media "agency." FREE: Buffer, HootSuite (3 max), SocialOomph, Friends+Me. JW: HOLD
B Samantha Melhorn (Robin Robins) PDFs to JW (is any info transfer pending?) JW: HOLD
C Set final date for "Luke 5" on Twitter and Facebook, or park the name? JW: HOLD
9- UCC website branding/ transitioned to OneEach
10- Legal liability for client security decisions.
A- Do we need to issue a disclaimer, for cases where a client undermines their own digital security? See attached document… DRAFT a boilerplate, respond back, print. We must notify client/announce.
Here's the original format (PDF) from that meeting and also as a JPG image
|"...until the client has first paid"||Realize/NuMSP (managed service provider) needs a lot of luck using this excuse to avoid paying workers. Oklahoma state law is the ultimate authority, or perhaps the National Labor Relations Board.
Are my former co-workers in the hardware department at Realize waiting for clients to make final payment before they get their paycheck? No; that's ridiculous. This ploy was concocted alongside "completed."
The reason they are not waiting is that the hardware/networking techs are beneficiaries of a competent business model that covers variability in client payment.
This is another example of language Realize/NuMSP did not use over the course of my four years there, but began to constantly repeat during the wage claim process.
|Elites speak to us||A VP at NuMSP named Lyndon Laemmerhirt sent several emails about me. I grouped them into one Feb. 14, 2022 reply. An abbreviated version of that email:
November 5, 2021
"To be clear I'm seeing you on as a 1099 contractor for project based work, so the State of Oklahoma Department of Labor would not apply here."
I performed both hourly and fixed-fee work, as you have by now noticed from the timesheets I submitted to Oklahoma DOL.
"I trust you have discovered this, and have not made statements to suggest that you were an hourly worker at any time."
"As a courtesy, letting you know that I will reach out to the department of Labor and set the record strait [sic]."
December 20, 2021
"I believe that the venue is improper given that Keith has never been an employee. Additionally his abrupt departure left us in a bind with customers expecting us to deliver on what Keith was supposed to produce but never did."
What's "abrupt" about my Aug. 17, 2021 resignation and two-week notice to HR and to Jeff Woods? Lyndon, you are an enthusiastic liar. The only things not delivered are A) the mostly-completed PetroSource that I coordinated with Jeff Woods and Adam Jacob Muller to be handed off to the "web team" that took control of the realizetech.com website, and B) the mostly-completed stonebridgegroup.net which Jeff Woods stalled for months, saying "I need to call them about those files we need" or "Oh I meant to call them, [scheduler] remind me to do that" or "They've been real busy lately, so I'll call them later." etc.
"We all make mistakes so we wish him well, but he is not being forthcoming with regards to having ever been an employee of NuMSP, he was paid only when he delivered projects."
My only mistake was believing my friend from church.
January 19, 2022
"Keith Purtell was an Independent Contractor for Realize Information Technology, LLC before they were acquired by NuMSP. They had six salaried employees and Keith Purtell was not one of them. We do not have a written contract with him. Jeff Woods had a verbal agreement starting in 2017. Keith was a friend from his Church, and Jeff Woods did not expect him to make false claims like this claim or the separate claim against Realize."
Starting as Jeff Woods's friend from church is why it took me so long to understand that something extremely negative was going on at Realize.
"Keith Purtell never questioned his status as an independent contractor until after he terminated his business agreement with NuMSP."
I immediately questioned my status when I read an April 15, 2021 email from Nicole Kelly describing me as a "contractor." I went home and did a great deal of online research about contractors. But by then, Jeff Woods and Krystal Staring may have already begun discussing how/when to detonate the 1099 land mine. From the date of that HR email until the day in August when I turned in my two-week notice, I only knew that management was up to something ugly, and it involved the word "contractor." It wasn't until two months after my last day that I discovered the "1099 land mine" when I submitted a claim for unpaid wages.
Almost the same thing happened to Michael J. (full name withheld), but he got the National Labor Relations Board on his side, and was paid his final wages.
"Keith had completed a W9 form, and his compensation was reported on 1099 forms per IRS guidelines for independent contractors. Keith's compensation was paid from the general operating bank account and not the payroll account that was used for employees."
For my entire life I have sought other people to manage my accounting: relatives, friends, H&R Block, automated websites. Krystal Staring told me during my first month: "Your tax forms will look different than what you are used to because Jeff is running Luke 5 as a DBA." As always, I trusted the accountants.
"Keith was not managed in the same way the employees were managed."
Same paper timesheets, same daily digital timesheets in ConnectWise Manage, same clients (one exception), same boss, same scheduler, same accountant/office manager, same type of phone extension entry in the company PBX list, same Lunch-n-Learn meetings, same Monday-Friday days in the office (but 9-3:30 because sales inadequate for full-time), etc.
"Keith chose when and how he worked and how he completed the projects he worked on."
I have a single phrase for anyone who goes to work for Jeff Woods and does not follow instructions: "Instantly fired." Feel free to look up former Realize Information Technology employees on LinkedIn and ask them yourself (Search LinkedIn [new tab/window). Jeff Woods is old school; top-down. I have never had another employer who fired people so frequently, or who was so likely to roar at well-intentioned employees who tried too hard to be helpful.
"During acquisition negotiations between myself and NuMSP Jeff Woods correctly reported that Keith Purtell was an independent contractor and was not included in the employee records. Jim Griffith, former CEO of NuMSP told Jeff Woods that NuMSP did not offer web services like Keith was providing for Realize and that NuMSP may choose to stop providing those services after acquisition. During acquisition Adam Muller, former vice president of operations from NuMSP and Jeff Woods discussed whether to keep Keith Purtell as an independent contractor and continue to provide web services or terminate the agreement and stop providing web services. Adam Muller decided to continue to use Keith Purtell as an independent contractor and continue to offer web services on a trial basis."
None of you took a moment to discuss any of this with me. It was literally in secret.
"It was clearly communicated to Keith Purtell that he was an independent contractor and not an employee."
I define "clearly" as the something either discussed or documented, i.e., "contractor" or "subcontractor" or "independent contractor" would have sufficed.
"He was not provided an employee offer letter like all the existing employees. He also did not participate in the new employee orientation and onboarding that the employees were required to attend. Adam Muller also took all employees out to dinner to welcome them to NuMSP. As an independent contractor Keith Purtell was not invited and did not attend."
If there is any one statement that conveys the Realize/NuMSP management mixture of arrogance, contempt and dishonesty, this bragging about concealed action is it. So much so that you have spent thousands on an attorney to steal from someone who already sustained massive financial losses from his affiliation with Realize/NuMSP.
Report factual errors
I am open to correcting factual errors. Oklahoma DOL personnel have my private email. Others may reach me via direct message on Twitter @keithpurtell (new tab) or the Messenger tool on Facebook @keith.purtell (new tab).
...in progress... updates soon...