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 socalled “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.