When I went into business for myself in 1994, I was a simple “dba”—“doing business as,” and the business name I chose at the time was the write enterprise. The reason being, I was starting a technical writing and editing business, and no one in Texas was using that name, so it was up for grabs. For the next several years that legal entity suited me fine, as my workload was manageable and I was working from home.
Eventually, I needed the help of an employee or two, plus occasional subcontractors when there were spikes in demand. This created a problem when working in a home office. If I were to hire help, I needed a neutral, more professional place for them to come to work. But there were other reasons that the home office was starting to become an unsustainable situation. Two of my newest contracts were with nonprofits in the Houston area, and the people who managed those nonprofits were all volunteers. Because those volunteers were working on their off-hours, they thought nothing of showing up at my home to hand off work product at night, during my dinner hour, or on weekends when I was covered head-to-toe with gardening dirt or mulch. I started to feel this invasion of privacy more and more.
Finally, my gross income had reached the point that my accountant had advised me it was time to incorporate. Not only were there tax advantages, but she said I needed the tax protections of a corporation—that all of my personal assets were at risk should anything ever happen and I got sued. So, all of these things worked together: needing employees, needing a real office, and needing to incorporate. In January of 2001, I took her advice and hired a lawyer to draw up articles of incorporation: Gail Bergan, dba the write enterprise became Bergan et al., Inc. (and I hope this is the last time I have to explain this: in the scientific publishing world, which is where I do business, “et al.” means “and others” or “and all the rest” in Latin, and every author/publisher in the world instantly recognizes that phrase and knows what it means, even if no one else does. 😊 ) I also found a very cool office space not far from my house that was based on an emerging concept in the working world: a shared space called eCitySuites where several independent entrepreneurs use the services of a single receptionist and share conference facilities, T1 internet lines, a gym, showers, etc. It was an awesome setup where I could walk or ride my bike to work. Shortly after moving into this facility, I hired a woman who was moving to Houston from Colorado who was as anal-retentive as I was, and could take a load of desktop publishing off my hands. Her extreme attention to detail meant I could relax with certain projects, knowing I could trust her eagle eye to make sure things were done according to my standards and to the requirements of our clients.
Our workload was split fairly evenly between desktop/digital publishing and technical editing projects. Because my background is geology, the technical editing projects came from oil and gas clients; specifically, at the time I had a retainer contract with an oilfield services company. So much of the documentation we were asked to edit involved their marketing materials, pages that ended up on their web site, technical datasheets, occasional books, and technical papers that would be submitted for publication. When conferences were coming up, we would get flooded with requests to edit technical paper submissions that were often on tight deadlines (authors are always pushing deadlines). During these times of peak activity, I found I could get some contract help through our local chapter of the Society for Technical Communication—a professional society for technical writers and editors.
During one such peak time, I put out a request for a contractor and interviewed a few. After talking to a colleague of mine and getting some recommendations, I decided to hire a couple of these people who I was assured could help me out in a pinch. One woman’s name was Doris. This woman had a master’s degree in English and more than 10 years of experience doing technical editing, so I felt I’d hit the jackpot. I hired her specifically to help me on a load of technical papers that had come in, and said I had maybe 1 month to 6 weeks of work promised me on this conference. The same lawyer who had drawn up my articles of incorporation had also provided me with samples of independent contractor contracts, which spelled out that she was not my employee but a contractor, that she was responsible for all her own federal income taxes and social security, noncompete clauses—all of that standard language. I filled in her name and other info on the contract, filled out the project description and payment terms, and we both signed it.
Then I walked through her first paper with her, showing her what would be required. I showed her the oilfield company’s style guide and what they expected in terms of handling their own trademarks, as well as the journal’s style guide and the requirements we had to follow there. On the computer she would be working on, I ran through the macros I had built into Microsoft® Word, which made a lot of the routine editing she would be doing go lightning fast. “You see? Instead of having to make this change manually each and every time, you just hit this combination of keystrokes and it makes the change throughout the entire manuscript, automatically!” After I finished giving her all the step-by-step instructions, and the cheat sheet for the macros, I left her alone to start on the first paper, which was about 10 pages long. She had a few questions throughout the day, but seemed independent enough and definitely knew how to use Word, so I left her to it.
She wasn’t done with the first paper until the end of the second day, but I knew that learning a new style guide can take time. However, when I opened the file at the end of that second day, I could see I had a problem. The first thing I noticed by looking at the “track changes” feature in Word was that she hadn’t used the macros I’d told her to use. So I knew for a fact that there was unnecessary time spent on the paper there. There were other problems with the file as well—the style guide hadn’t been followed for formatting, editing, anything. I was wondering just what she’d spent all those hours on.
Luckily, she was still in the office. “Doris, can you come in here, please?”
She comes into my office. “Yes?”
“Well, I’m looking at your edited paper, and the time you spent, and I’m having a hard time reconciling the two. First of all, those macros I showed you, that speed up the editing. I can see you didn’t use any of them by the track changes.”
Doris replies, “No, I didn’t use any of those. Because they don’t show up as a tracked change. They don’t get marked in the document.”
I stared at her. “I already know that. A lot of the tools in the toolbar in Word, if you use them, they don’t get marked as a tracked change. If you use the Bold or Italics button, it doesn’t get marked as a change, but it changes the document. They are just efficiency tools. That’s what a macro is, it’s an efficiency tool. Now I’m being charged additional time when I’ve showed you a more efficient way to get the job done.”
She seemed unconcerned. She just shrugged at me and said “Well, you also told me to use track changes, and my main concern was that the client sees all the changes.”
I gave up on that one. Then I asked, “My second question is the amount of time you’ve spent, because clearly the task here isn’t done. This paper wasn’t edited to this journal’s style guide. You didn’t follow any of the instructions, the step-by-step. Yet on this particular paper, 15 hours??”
She said, “Oh yes, on that one I had to do a lot of research. And I saw the time was adding up, so I thought I should wrap that one up.”
My eyes popped open. “Research?! Research on what?”
She replied, “Well, how can I possibly edit a paper on coiled tubing if I don’t understand what coiled tubing is? I had to study that first, before I felt comfortable touching the paper. I did a lot of searches on that technology and feel I understand it a lot better now.”
Oh my God, I thought, did I hire the wrong person for this job. I said to her, “Doris, we are proofreaders and copy editors. We are not peer reviewers. I read these papers all day long, every single day, and I do not consider myself in any way on the same level of understanding as the petroleum engineers who write these papers. I do not pretend to understand the engineering or the technology involved. But I do understand technical writing, and proper sentence structure, and proper grammar, and proper spelling, and a journal’s requirements for capitalization in their headings and figures and tables. And THAT is what we have been hired to do. Somehow this distinction seems to have escaped you. If you felt that part of your assignment was to spend 10+ hours researching the subject matter, I think that was something you should have cleared with me.”
I decided I needed to cut my losses with this girl; I wasn’t confident that if I gave her another chance that she would get it right. I told Doris her time as a contractor with me was finished, paid her for her time, and let her go. Of course the money I paid her was wasted; there was no way I could bill my client for all the time she’d spent. The work she’d done largely had to be redone by me, so it was a loss for that time period.
Apparently, Doris continued to have employment troubles, because I’d heard a few months later that after her time with me, she’d gone on to a full-time job with someone else, only to be let go from that one shortly thereafter.
A few months later still, I received a phone call from the Texas Workforce Commission (TWC). For those of you who don’t do business in Texas, this is the enforcing arm of all things employment in Texas: it’s where corporations pay their employment taxes and it’s where individuals file for unemployment benefits when they’ve been laid off from work. Of course, ever since I incorporated my business, I had become well-acquainted with TWC and had to pay into the system, no matter how small my business was.
It seemed that Doris had filed for unemployment benefits because she’d been laid off from work, and when you do that, you have to provide a list of the last five places you worked. Guess who made the list? Bergan et al., Inc.!
The very stern lady from TWC introduced herself and got quickly to the point. “Doris ___ has listed Bergan ‘ET ALL’ as a place of employment in the past 6 months. But we don’t have any record of you paying in employment taxes on this individual.”
A lightning bolt of fear went through me. “What?! Employment taxes? She was a contractor!”
“It says here she worked for you. As an employee.”
I said, “Well, that’s incorrect. I don’t care what she reported. She was a contractor.”
The lady replied, “Can you prove that? Do you have a signed subcontractor agreement that spells out the relationship?”
“Yes, ma’am, I do.”
She also asked, “And did she fill out a W-9?”
My mind is racing back. Did I have her fill out that IRS form?? “Yes, I believe so.”
Now the lady’s tone is starting to soften just a bit. Maybe she didn’t catch me with my pants down after all. “Well, what you’ll have to do is forward all the documentation you have on this woman’s employment to us. If you’ve met all the requirements that classify her as an independent contractor, then you’ll be OK. But if we decide that she was, in fact, an employee, then you will be responsible for her back taxes, as well as penalties. We also have a 20-question form you’ll have to fill out, which was originally authored by the IRS, that fully differentiates between employed and contract personnel. We take misclassification of employees very seriously. Why was she terminated?”
I sputtered out, “Basically, because she couldn’t do the work. She wouldn’t follow instructions and I had to redo everything I gave her to do. Everything I paid her was a loss to me.”
It was a sickening feeling in my gut when I hung up the phone with the TWC. Did I have all the proper forms in place? I believed I did, but she sure had a way of making me second-guess myself. Doris knew full well that she was not my employee—but she clearly put my company on that form intentionally to get me into trouble, as a form of revenge. In the upcoming weeks I filled out all the TWC forms and faxed in everything that Doris and I signed, including the IRS Form W-9, and waited for their decision.
Ultimately, the TWC decided that my paperwork was, in fact, in order. I had done everything correctly (and was doing everything correctly) with regard to my subcontractors. But it really gave me a scare. If I hadn’t had the proper legal paperwork in place, it would have been a huge, expensive mistake for me, and would have put the TWC on notice that my company was trying to get away without paying employment taxes to the state. Not only would they have made me pay back taxes and penalties for Doris, but they would have opened up cases for every other person whom I’d hired as a contractor and made determinations on all of those, no doubt not in my favor.
This brings me to 2021 and starting my new short-story blog, Gail’s Story. I had a feeling, as with my primary livelihood, that this venture would also need some legal protections. Because I was so new to the blogging world (I’d never even read that many of them), I joined a how-to blogging group on Facebook®. A few that I’d started to look at had extensive disclaimers, terms and conditions, and so forth in their footers, and after skimming those I thought, “No way do I know how to write something like that.” Furthermore, are they even necessary? What are the chances of being sued, just for posting a few stories on the Internet?
So…I asked those very questions in this how-to group. Boy, did I get educated quickly! The Internet is not a friendly place, and being sued for using a person’s name, image, etc. without permission is a real threat. Using a person’s data incorrectly can get you into trouble. There are proper ways to handle purchased images, affiliate links, and to report when you might make money off a link. If you have adult content anywhere on your site (including just a few cuss words) and if you don’t explicitly state in your Terms and Conditions that “this site is intended for persons 18 years of age or older,” that can get you into hot water. As usual, I found out quickly that I was treading into a territory that I really knew nothing about, even though I’ve had my own web site for almost 30 years.
Luckily, there are lawyers who have become bloggers and have solved these problems for the rest of us. I was pointed in the right direction to one of them: Amira Law, who makes available legal templates for every conceivable legal situation we might find ourselves in.
[Epilogue: My time renting office space was short-lived. About 3 to 4 years after moving in there, eCitySuites went bankrupt. I never heard the full story, whether they overinvested in the facility or it was simple mismanagement. But I did notice in my last year there that one by one, other offices around me were vacated and no one was moving in to replace them. The receptionist moved on and she wasn’t replaced. After the bankruptcy announcement, of course, the rest of us left. They were threatening to not return our security deposits (“That’s what bankruptcy is…protection against debtors…”) but I did finally get mine back. Shortly after that I pulled up stakes and moved down to Rockport, Texas, thus making huge changes not only for my business but also for my personal life. I’ve operated from a home office and been a one-woman show ever since.
[Some images on this story are from Adobe® Stock. Links to Adobe Stock and Amira Law are affiliate links, meaning I will earn a small commission if you purchase from links on this site.]