claim right it is not so i'm not sure we should need to be talking about dynamics it discusses though the history of the classification of an employee versus and depend a contractor but there are lots of other cases that do too so is there anything in particular about dynamics  i mean that to the extent dynamics is different i don't think dynamics applies here and otherwise it's just repeating what other cases that ok then our fallback position is the burrell case which is that it seems like that is what you should be talking about her and so basically our case law says that whether you are an independent contractor or an employees a question of law is that right ultimately that is a question of law yes and when if there's undisputed facts it remains a question if there's disputed facts that would potentially change the outcome then it becomes a question of fact so how far do we need to go with that because here i mean is your position that any time there's a question if any time there's a disputed fact on any of the factors that go into right to control it becomes it becomes a question of fact because there is what is this summary judgment yes well but don't you have to look at that and in the context of all of the factors and say i mean if there's six factors that weigh in favor of him being an independent contractor and one that's disputed wouldn't you just say ok we're going to assume that a reasonable jury could find that that factor weighs in favor of an employee but even if we look at that as a legal matter he's still an independent contractor that's a potential conflict that exists yes what do you mean that's a potential conflict i mean i think the point is that the fact dispute needs to be material and if if the fat dispute only goes to one factor say in twenty and the other nineteen go the other way then it's not a material fact dispute rate would agree with that and i think in this case we've established i don't know is performance it is business as a sales rep and they basically controlled every aspect of what do you think the dispute is what's the fact dispute about control is it whether he said i or not up in the morning when every wanted home and work whatever he wanted to there was no schedule you was the magazine didn't give him a specific schedule it seems undisputed that's correct but he did work twelve to sixteen hours per day and he had to meet a certain quota every year or that's not inconsistent with a mean an independent contractor i mean where's the just let me just cut to the chase and then you'd maybe there's more it looks like the decision making authority over who the employee may hire was disputed if they're not doing what they're contracting for presumably you terminate the contract so this is a very odd factor well again he was there for twenty five years which is not with an independent contractor that is actor in your favor well i'm a little background where i mean i was at a company where we had many independent contractors or been with the company for twenty five years so i don't i think you're right that's what california law says but i don't understand the rationale  furniture establishment but then they said no we want you to be exclusive to magnus and so again they're capturing him and you're like my employee we want you do what we want not what you want so what about the  this is i don't want to see it's dispositive but in my mind it almost becomes this way he never got paid there was never a check that was made to your calling it in his name he set up a company and it was paid to the company and then he took the wages out so number one if he never received a w two which may or may not be just i mean california law again has a certain view on that that i don't necessarily agree with but but what i do think is pretty compelling step but i i read that keeps differently i read that to be you could have a dual status but that would imply it is a dual status that certain money was flowing to the company and certain money was flowing to the employee here you don't have any money flowing to the employee be wrong about things or dispute a fact where there's a check that went to two i wish there is none so that i don't spend that case hopeful he says i'm going to do the work here's how i want to get paid is maybe your point is they were in theory they could have been wages that he assigned to another entity so i mean there is a way around this but it seemed it seemed odd it i've never heard of an employee being a corporation factors you have the control issue and then you have the restatement additional issues you wouldn't give to a jury the role of deciding how to weigh those factors that's a decision for the judge well  say there was a dispute to say there was a dispute of fact about all of the factors would it then go to a jury you would have the jury resolve the underpinning each individual factor this disputed you could do it that way and then have the court as a matter of law based on the jury's finding of that particular factor how it would apply to this case or or you could instruct the jury that if you find this then you must you know you could do that you could do that but i would think in cases it involves factual disputes on the various factors you may have a very complicated verdict form instructing the jury what to do if they find x y or z but i think the the ultimate problem is that it's a policy decision that you make as to whether it's an independent contractor or an employee it's not a jury question jurors don't go to law school they don't know the cases only a judge can look at borrello and look at the raises a question what threshold do we hit the material issue that we would need to send some to the jury and here we have as it looks like five factors that are undisputed that we in favor of independent contractor we have one maybe two that are disputed but then they're fairly big factors i mean at least under california law the authority over who an employee may hire is is determined has been determined to be a key factor if there's a dispute about that is that enough on its own to send an issue to the jury and get back to the fact that the employee in this case so called employee is incorporated so it was f s e mr is that just a positive i think it should be i looked at the frankel case and i think it's just say that it depends on the facts of each case it can be dispositive because every case is different frankel did not have all involve a situation where mr irish had his own corporation f s a who in turn hired subcontractors or sub representatives so i think the said he claims he that he didn't have full control over that because your client could require him to fire them or we can i don't think they could require to fire them and they could they could  the position that they could approve them in the st place because these people are representing the company there's no question that madison's product and their product line their brand is being represented by an independent contractor they need to control that they need to protect their well i think proper i totally agree with that i get that but the question is does that exercise enough control that then they have to be employees i don't i don't think so i think the there real evidence in the record that i can tell that they could fire them out of will even i don't think you could even fire mr irish at will that's a fact dispute though probably because he claims he said i know you say he just retired he claims no i was fired and it seems like maybe there's a fact dispute about whether you could fire him at counsel admitted that if you did me just quote he could be terminated that's not a doubt we'll terminations that requires some basis for a good cause so that's how you would distinguish that situation but the key elements i think here are that he if you disregard the corporation he worked out of his house he could hire just going back to that so i think he was meeting his quotas right and he says he was nevertheless fired so is that a fact is you know whether he could be fired i don't think it's a fact dispute because the question is when he was hired what was the basis upon which he could be fired we're only talking about one factor here right we're talking about the factor of whether he could be fired for any reason at all it's only one out of many but i think that the california courts is that it's the most important one well control the most important factor is control over the manner and means of the work is that some of the case to say that the best way to figure that out is whether you can fire it for with well well i don't think that's the case here i don't think that's a disputed fact at all i think what he said in his declaration is contradicted by everything you testified in his deposition on the  what you say in your deposition controls over a contrary declaration on a summary judgment and what you think he said in his deposition about whether you could be fired i don't think he took the position that he could be fired if you didn't use court as you said today  but he never took the position he could be fired for any reason at all that never happened was he asked i mean why are you mentioning the deposition because i think in the deposition and i think the record shows that there was no mention that he could be fired at will that's his terminology if they could fire me that's council's terminology i don't think he said that but was he asked that question i'm not sure he was asked as particular question but then it seems neither here or there really i don't think it's i don't think it's an issue here i read it in the opening brief they don't make a big deal out of it can you tell me what it was inconsistent because you help me understand why california thinks that the ability to hire fire at will is so conclusive to be an employee it seems totally counterintuitive to me well i mean as i see it it's only one factor can't be conclusive because well but they didn't seem to elevate it going so well in certain cases of elevated it maybe they backed away from that now but i don't understand why it's a factor i just can't understand the logic of it and i don't know if you have anything to help me out here it's not consistent with borrello i mean that's the guiding light in this in this area and that's not even the factor that we're all of focuses on the role of focus is on control over the manner and means exclusively and he did represent or through use of representatives he could represent five as he did represent five other companies and that's i think a very very critical factor that as a matter of law it takes them out of the equation in terms of being an employe and they couldn't exercise any control over their over the country gibson yeah i don't think there's a lot of evidence in the record at the say that they could fire those individuals i think they could they could sit down with mr irish and say who do you propose to bring in as your sub representative can we meet him can we talk to him you know we'd like to see who you're working with because he's going to be representing our brand that's legitimate gym of business interest was a contract there i take it there was a contract governed their relationship or not the contract was between plaintiff irish and furniture sales was a between irish or was it between his corporation the corporation and that's the way that as a matter of fact that's how they paid they didn't pay i hired a f s a but so there was no there was no contract that covered magnusson and irish in is as an individual no not that i'm aware of well wait sorry say that was a contract strongly in favor of infrastructure if we were to disagree with you what would we do would we say if we said there's there's a material issue of fact on terminations and and and and whether  who had decision making authority over the employee over the employees that worked with irish what would we do would we send it back and ask for a jury trial on those two questions i don't think you have to i think well i know you don't have to i'm just trying to go into this alternate universe and just understand what we would do and what we would we send them to i think you made this point we wouldn't send the question of whether he was an independent contractor or an employee to the jury or perhaps we would based on certain stipulations but or the district court what i guess but would we just tell the district court to have a jury trial on those two questions i think you could do something like that you could have special  issue is you have to have a even if the jury came back and said you're right magnussen exercises total control and they can fire him oh well then the judge looks at that says ok nice stone i said it was radically different because i'm weighing all the other factors outweigh the one little factor that might make him an employee so you said burrell it doesn't talk about the at will but i think that's not right because burrell is as we have noted that strong evidence in support of an employee employment relationship is the right to discharge at will without cause it's a strong a strong actor but how strong is the village if it is a factor so but will says that but what does it really mean in a particular context so you know so one of the secondary factor is is in this kind of occupation in this locality what is typically done can you tell us anything about that what is done i think it's it's in the furniture business where especially this company manufactures the furniture in vietnam and other countries  outside the u s that's where it's built and so they have to work with independent sales representatives on a commission basis throughout the country so there's no show room it's all just they have a market four times a year and which ones in north carolina and they'll everybody comes in from all over the country and shows there their furniture lines and so the company representatives will will attend those markets and sell the product t retailers but you're saying in this in this occupation it's all just people i guess driving around to meet with clients not showing them a show room i think i'm not sure of the details but i mention they have  pictures portfolios and other things that they show to the customer and you have any understanding of the employment or independent contractor relationship that people typically have with the furniture manufacturers for other manufacturers between magnussen and irish there was no contract per se between magnussen and f s  you got there but you're saying that this is this is the only quote agreement and it's not signed by any corporate if you see the nd page you're just signed by the individual mr irish well if it says i mean it does say company name furniture sales agents incorporated i agree so i mean the company can't sign other than through someone so i'm not sure how this really tells us one way or the other i agree i think it's well the council said there was an agreement between magnussen and f s a and there was no contract other than this to these two pages so for however agreed to between irish and magnussen it was a range of percentages on the commission based upon his and based upon that certain factors that were established and just the other issue that  was selling to other companies for a long period of time but for the last five years leading up to this germination he was not magnets and said we want you to sell exclusively magazine products period a point of clarification and the fact the last point is the fact that he was fired even though everyone in the whole busy world admits he was doing his job suggests that he was fired without cause