[svlug] ISSUE: SVLUG's continued status with SBAY

Rick Moen rick at linuxmafia.com
Sat Feb 25 12:30:14 PST 2006


Quoting Karen Shaeffer (shaeffer at neuralscape.com):

> 1.) I have no axe to grind here.

Of course.  But I can't help thinking that there must have been some
severe miscommunication -- and am perfectly glad to assume it was my
fault.  (One tries to be clear and explicit, but doesn't always
succeed.)

> > What I said was:  
> 
> That's not really what you said. 

Well, it's absolutely what I was _trying_ to say.

As mentioned, I have a background in business matters and business law,
mostly from my days working in CPA firms and studying for and passing
the CPA examination -- which unfortunately sometimes results in my
assuming that other people understand (or are willing to spend time
learning) some of the jargon and concepts.

Unfortunately, what people _hear_ sometimes differs:  As I found out on
the months-ago volunteers at lists.svlug.org discussion, I _thought_ I had
carefully explained that the principal benefit of incorporation (at
least in theory) was a shield against legal liability -- and it turns
out that participants there seem to have thought I was talking about
_insurance_.

{sigh}  Oh well.  Let's move on:


> Folks are free to look at the archives and see for themselves. But I
> do appreciate you filtering out all the noise and clearly telling us
> the essence of your thoughts. Let me respond to your concise ideas
> here.

But then you actually didn't.

I appreciate your thoughtful comments, but claiming I need to support
what I said about LUG experiences all around the world with statistics
is really _not_ reasonable in context.   (I do not "need some experience
with statistics", by the way:  My degree happens to be _in_ mathematics, 
and with a bit of brushing up I'm quite sure I could _teach_ statistics 
-- as I in fact did for Menlo College students when I was a high school
student at Menlo School, next door.)

When I said that LUGs don't tend to get sued, that was a conservatively
worded understatement:  I've literally never heard of it having happened
anywhere at all -- and almost certainly _would have heard_.

Why?  Because LUGs are a really small and scarily interconnected social
world, and I've been at least a lurker on basically every electronic
forum for intergroup cooperation, over the years.  And we talk.  A lot.

So:  "scientifically required structure"?  Make me laugh -- and, more to
the point, get me a nice, big Federal research grant and half a year to
write up a monograph -- and, for that waste of taxpayer money, you'll
almost certainly get a huge pile of zeroes.


> Therefore, I think folks who are volunteering at LUGs here in California,
> where lawsuits are not generally a rare event, should be focused and
> diligent when considering how to limit their potential liability with
> respect to their activities connected to the LUGs.

Well, yeah.  

However, that pretty obvious truism is kind of a change of topic
from whether corporate status is significantly useful towards that end
for LUGs.  To which point, I'd like to return:

Among other things, as I pointed out with my salmonella / Linux Picnic
example, having a corporation somewhere in the picture is _pretty far_
from a magic talisman against individual inclusion in civil litigation,
because the scope of corporate liability shields is pretty narrow and
basically intended to protect employees and company officers acting
within the scope of their explicitly defined employment roles.

I referred to "agency law" in that context -- which touches on a matter
that should be familiar to pretty much everyone who's worked in the
Valley:  contractor vs. employee status.  Many of us, especially during
the bust, found ourselves working as "contractors", i.e., without
benefits.  The tax authorities long ago cottoned onto this ploy on
businesses' part to evade employment insurance tax, and occasionally
crack down on firms arbitrarily classifying workers as "contractors"
when they are actually, substantively employees.

Which is, in fact, one of the focuses of agency law:  Regardless of an
employer's classifications, a worker is an employee if he/she meets
certain tests outlined in US Supreme Court case "CCNV v. Reid" (490 US
730):

  1) Control by the employer over the work (e.g., the employer may
  determine how the work is done, has the work done at the employer?s
  location, and provides equipment or other means to create work)

  2) Control by employer over the employee (e.g., the employer controls
  the employee's schedule in creating work, has the right to have the
  employee perform other assignments, determines the method of payment,
  and/ or has the right to hire the employee?s assistants)

  3) Status and conduct of employer (e.g., the employer is in business to
  produce such works, provides the employee with benefits, and/or
  withholds tax from the employee?s payment)

(These factors are not exhaustive.)  CCNV v. Reid was actually a
copyright case:  CCNV (Community for Creative Non-Violence) claimed that
James Reid's sculpture was a "work for hire", which would have
necessitated him being an employee as the term is defined in agency law.
The court held that Reid was an independent contractor by the nature of
his work relationship with CCNV.

The point -- and the point of my salmonella / Linux Picnic example,
which you ignored -- is that agency law is key to determining whether a
particular individual's actions will be covered by a corporate liability 
shield, too.

Someone like me who flips burgers at Linux Picnic is very unlikely to
escape individual legal liability merely by claiming to be a peon of the
sponsoring corporation -- because he/she simply isn't.  Typical LUG
volunteer activity is nothing at all like employment (or other means of
being a corporate agent) in the ways that matter -- those outlined in
CCNV v. Reid and other leading cases.

A volunteer at one of our installfests, you say?  Well, sorry, those
aren't SVLUG's powerstrips and screwdrivers.  There aren't SVLUG
supervisors directing the volunteers' work.  The volunteers aren't doing
work matching formal job descriptions.  They aren't required to be
punctual in arrival and departure.  SVLUG doesn't take any steps to
specify what they are and are not going to do.

Which you may recall was also my point about Linux Picnics.

Conclusion:  Electrocute someone at an SVLUG installfest, and you're
really screwed.  Running to mama corporation isn't going to protect you.

I'm sorry to have ignored your "electrocution" scenario until now:  It's
that lack of Federal grant money again.  ;->  But now I've discussed it.


Anyway, by the way, Karen -- not that this really matters, but:  Here
in the USA, electricity accessible at installfests is 110VAC two-phase.
It's certainly _possible_ to kill yourself by being stupid or really
unlucky with that, but a little difficult.  It would help to stick one
hand in a metal bucket of water, before jamming the other hand into a
dissected PSU.  Short of such measures, death by misadventure and
qualification for the Darwin Awards is somewhat difficult.


> I don't think volunteers, especially those with a long history of
> volunteering, should be made out to be demons.

I absolutely agree.  Thank you for stressing that.





More information about the svlug mailing list