OmStars Yoga TV Channel

OmStars Yoga TV Channel

This post is to support the new OmStars Yoga TV Channel that is being launched by Kino MacGregor and Kerri Verna. Their innovative idea is to provide authentic yoga teachings over a television platform. They hope to increase the presence of yoga in the world and make it a better place for all. I have known and worked with Kino and Kerri for a long time and am confident that they will succeed in reflecting yogic wisdom that is grounded in the tradition in a way that resonates with modern lifestyles.

Their project is being funded by a Kickstarter campaign. Here is the link:

https://www.kickstarter.com/projects/1851092379/live-the-yogi-life-and-illuminate-your-yoga-practi

Here is the announcement of their new project in their own words:

Yoga practice is not about the asanas, or poses—it is about our own, inner journey.

But yoga lifestyle can sometimes feel like a bubble, separate from the mainstream world.

A few years ago I was flipping through all the yoga content available online. I realized that there was nothing that spoke to me as a yogi.

Sure, there was an abundance of yoga classes, but there was not fun, watchable content that showcased the real life struggles of living the yogi life. There was only a sea of drama and angry faces. I wanted to watch someone going through the yoga journey like I was.

Then, a light bulb went off in my head—what if there was a Netflix for yogis?

But I became discouraged. I had previously offered a reality television show built around the yoga lifestyle to major broadcast networks and was rejected more times than I can count.

Not only that, but people in the yoga world pushed back hard against the idea of a reality show about yoga. They said that yoga is sacred and shouldn’t be dramatized for ratings.

They called me all sorts of names and proclaimed that I wasn’t a real yoga teacher, but a yoga cheerleader egging people on in small shorts.

I pitched the idea of a channel dedicated to what it means to really live the yogi life to a series of possible partners and they all turned me down. Some said they didn’t have the funds. Most didn’t believe in the dream.

I nearly gave up on my dream. I’m so glad I didn’t.

I actually agree that yoga shouldn’t be left in the hands of television executives who equate ratings with drama. I think this practice is sacred and should be treated with reverence and respect. I think it takes your whole life to really understand what it means to be yogi.

Then I finally realized that I didn’t know anyone except one other person to believe in my dream. I only needed my business partner and best friend Kerri Verna to believe in it enough to put everything on the line to build it ourselves.

And that’s just what we are doing right now, launching our Kickstarter campaign for yoga television channel.

OmStars is a unique combination of high level of training in India with accessibility and reach to the needs and desires of the normal American life.

Sometimes I feel like a yoga encyclopedia. My teaching is much more than just an asana based, but carries the holistic imprint of a lifetime spent with the Indian masters. I carry the torch of reverence, devotion, and humility for the spiritually tradition of yoga.

At the age 27, Kerri was diagnosed with fibromyalgia, carpal tunnel, was unhealthy and had consistent pain in her body. She used yoga to overcome her challenges, avoid back surgery, and has helped many people whose lives have been riddled with chronic pain. Kerri calls herself “an American yogi” and her motto is “no perfect people allowed.”

We want to invite people to experience the authenticity, authority, power and presence of the true yoga lifestyle, with a channel owned and built by actual yoga practitioners rather than corporations.

Our channel lives online and speaks directly to yogis all over the world. Here’s why our dream is called OmStars. We combined the Sanskrit word for the highest and holy presence in Om with the multitude of yogis who shine like bright stars after they commit themselves to the practice.

OmStars is a spiritually oriented lifestyle channel that truly presents the full picture of the yogi-life. Not only will this be the exclusive source for online classes by me and Kerri going forward, but we seek to present the world’s best teachers and most compelling narratives in a format rich with meaning, power and purpose.

We want to connect people to the values, history and blessing that comes from practicing yoga with the traditional masters. We want to present the stories of real-world yogis who embody the spiritual struggle of living the yogi life in a technology driven modernized world.

OmStars is a place where you come to seek peace amidst a world of chaos. It’s the world’s first yoga television channel aimed at creating a global tribe dedicated to the discovery of the true light. It’s about more practice, more surrender, more self-reflection, more inclusion, more patience, more tolerance, more kindness, more love, and more peace, for everyone.

Rather than a bunch of random classes, you will be thoughtfully guided through series and courses designed by us in collaboration with the leaders in yoga, meditation, mindfulness and healthy living. Each of the classes are part of a larger course, and we are being selective with guest hosts and instructors by only inviting key leaders in spirituality and mindfulness.

Our platform covers in-depth how to live the holistic health lifestyle. This is way beyond just what shapes you can make with your body.

In addition to authentic yoga teaching, experience and learning about the yogi’s life you’ll see how we act with our families, what we eat, where we travel and the art, music, and health ideas we care about.

We divided our content in to four categories:

Practice – Yoga, Meditation and Movement Courses

Insights – Research, Study, Knowledge and Wisdom Courses

Wellness – Vegan Cooking and Balanced Living Courses and Tips

Culture – Travel, Fun and Play

I see OmStars as a gathering place for the pure of heart.

OmStars is me and this is an open call to everyone who is ready to live the yogi life with us—yogis, spiritual seekers, and anyone who is looking to live a more peaceful life.

Yoga is a spiritual tradition with profound depth. This is not just another online platform and it’s not just another television show feeding on drama, we are curating a journey—our journey into the world of yoga.

Kerri and I are not perfect. We strive to treat people with kindness patience and tolerance but we mess up. We want to make content that is both raw, real and transparent.

We know that sharing our journey has been inspiring on social media but there is only so much we can do with a post and a caption.

As we reclaim the heart of the practice together and restore its potential for sacredness and for healing, we will make the spiritual journey of yoga available for the world.

We believe in tapping into a community of like-minded souls and finding friends that understand you. We believe in living with more purpose, living in a body that is optimized and having a heart that is capable of joy and happiness.

We know the yoga lifestyle works, we know if can change people’s lives, but to make this happen we really need the support of our fans and followers like you.

The New York Freelance Isn’t Free Act

On November 16, 2016, Mayor de Blasio of New York City signed into law the Freelance Isn’t Free Act (the “Act”). The Act is important legislation and has far reaching implications for anyone who uses freelancers in New York City. Freelancers are independent contractors under the Act.

The Act gives freelancers the right to sue for double damages if the hiring party does not give them (i) a written agreement that contains certain required provisions; and (ii) they are not paid by the date stated in the agreement. If no payment date is stated in the agreement, then the freelancer must be paid within thirty (30) days after they complete the services.

If you use freelancers who live or work in New York City, the Act applies to you, even if you are headquartered outside of New York.

Who is covered by the Act?

The Act defines a “freelance worker” as  any single person who is hired as an independent contractor to provide services for compensation. A freelancer is only a single person. This is true even if the freelancer does business as a limited liability corporation (“LLC”). The LLC must be a single member LLC. If it has more than one member, it is not a freelancer under the Act.  There are three exclusions from the Act: sales representatives, lawyers and medical professionals.

What provisions must the contract include?

The Act covers any contract between a freelancer and a hiring party that has a value of $800 or more. If the Act applies then it requires that the contract must be in writing. The contract must include the following provisions:

1. the names and mailing addresses of the parties;

2 a list of services to be provided;

3. the “value of services to be provided;”

4. the rate and method of compensation; and

5. the date when the “hiring party” must pay the compensation or the “mechanism by which such date will be determined.”

It is common in the freelance community that the understanding between  the hiring party and the freelancer is documented by emails or oral statements.

In view of the requirements of the Act, email “agreements” should no longer be used. Formal independent contractor agreements that comply with the Act must be used. The City will be posting free examples of agreements that comply with the Act.

What are the payment obligations under the Act?

The Act provides that compensation shall be paid to the freelancer on the date payment is due under the contract.  Payment must be made no later than 30 days after completion of the freelancer’s services under the contract if the contract is silent on a payment date.

Disputes frequently arise as to when the freelancers services are deemed to be complete. The freelancer may think that the services are complete and that the specifications in the agreement have been met. The hiring party may think that the services did not meet the specifications or were delivered late. Sometimes the late delivery will harm the hiring party.

All independent contractor agreements must clearly define when services are deemed to be “complete.” If there are quality specifications and delivery requirements, they should be clearly spelled out in the agreement.

The Act does not include a provison that the hiring party can refuse payment or offer partial payment if the worker has not satisfactorily performed all of the services under the agreement.

No intimidation of freelancers

The Act also provides that, once a freelancer has commenced performance under the contract, “the hiring party shall not require as a condition of timely payment that the freelance worker accept less compensation than the amount of the contracted compensation.”  Put simply, this means that the hiring party cannot intimidate the freelancer into accepting less money to receive any money at all under the agreement. Hiring parties may not harass or discriminate against freelancers.

Freelancers have the right to file complaints under the Act against hiring parties. There are procedural sections in the Act which describe the process to be followed.

What are the penalties for non-payment, partial payment, or late payment by the hiring party?

The Act allows a freelancer to bring a civil action for damages if he or she is not paid the full amount due under the contract or is not paid in the time required under the Act. If the freelancer wins, he or she will be awarded damages and reasonable attorney’s fees and costs.

If the freelancer wins, then he or she is entitled to receive twice what they are owed. This is true even if there is a legitimate dispute as to whether the services where completed on time, in a satisfactory manner or even at all.

What happens if  no written agreement is provided upon request?

If the hiring party fails to enter into a written agreement upon request and that meets the requirements of the Act, the freelancer is entitled to receive statuatory damages in the amount of $250.

Some problems with the Act

Even though the Act was written to protect freelancers from abuse, it has  problems. The most important is that the contractor may be awarded double damages for failure of the hiring party to pay for services on a timely basis even if there is a good faith belief that the services were not performed in a satisfactory manner or if the agreement is breached by the freelancer. It appears that the hiring party does not have a defense to the double damage penalty even if he can prove a good faith reason that he was not obligated to pay the money in question.

What should you do if you hire freelancers in New York?

Here are the key things that you need to know:

1. You must understand and comply with the Act. The Act was written to protect freelancers and contains penalties that you must pay if you violate the Act.

2. You must have a written independent contractor agreement. It must have the five items required by the Act.

3. You should pay the freelancer the compensation that is due under the agreement when it is due. It is a good practice for the agreement to provide that the freelancer must provide the hiring party with an invoice when it has completed the services. This will clarify when the obligation to pay is triggered. The contract should provide that the hiring party must pay the invoice within a certain number of days, such as 30 or 45 days.

4.  To protect the hiring party, the contract should provide that the hiring party is not required to pay the freelancer until he or she has fully performed the services required under the agreement, and the hiring party has actually accepted the services. There should be a procedure whereby the hiring party can reject the services and the freelancer must resubmit the services until they conform to the contract.

5. Hiring parties may be subjected to double damages (as well as statuatory damages, civil penalties and attorney fees) if they violate the Act.

Resources

Here is the link to the Act:

http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=2530972&GUID=61F8754B-80AF-493E-895E-D6D17209776E

Commentaries on the Act:

http://bradlander.nyc/news/updates/first-of-its-kind-legislation-will-crack-down-on-nonpayment-epidemic-facing-nyc-s-13-mi

http://www.newyorklawjournal.com/id=1202771652331/Freelancer-Bill-Is-Smart-Law?mcode=1202615325582&curindex=0&curpage=1

Yoga Vida NYC Wins- A Ray of Light in the Darkness of Independent Contractors?

The Background

On October 25, 2016, the Court of Appeals of New York delivered its opinion on In the Matter of Yoga Vida NYC, Inc. v. Commissioner of Labor. The Court overruled the Unemployment Insurance Appeal Board (the “Board”) that had affirmed the Commissioner of Labor’s decision that Yoga Vida’s teachers were employees. The Board had decided that Yoga Vida exercised enough control over the teachers’ work to justify a finding of an employment relationship.

The Court found that the Board’s decision that the teachers were employees was not based upon “substantial evidence.”  The Court held that Yoga Vida’s teachers are not employees within the meaning of New York’s Unemployment Insurance Law.

Four reasons why this opinion is important

The Court’s opinion is important for several reasons. First, this is the first opinion of an appellate court I have seen that has considered the classification of teachers by a yoga studio. It is rare for a classification case to reach the appellate courts and even more rare for the case to involve a yoga studio. Most of these cases are resolved at the administrative level.

Second, the yoga studio won. Most studios lose their tax audits at the administrative level and pay the taxes and fines rather than appeal the decision to the court system.

Third, we have guidance from a New York appellate court on facts that support a finding of an independent contractor relationship. If a New York studio structures its relationship with its teachers the same way that Yoga Vida did, it can rely upon the Court’s opinion to argue that its teachers are independent contractors.

Fourth, the New York  Department of Labor has been very hostile toward yoga studios classifying teachers as independent contractors. If we are fortunate, this opinion may cause a sea change in New York. The Department may decide to reduce its audits of yoga studios because it may feel that its chances of winning an audit have decreased.

It’s precedent for New York only

Stare decisis is the doctrine of legal precedent. Courts rely upon stare decisis when the same case before them has been decided by another court. Courts will use the prior ruling as a guide on how they should rule. Generally, courts will respect the previous ruling and rule the same way. This is not always true because the facts between two cases are rarely the same.

This opinion is precedent only in New York. It will have little value outside of New York. If you are audited in another state and you cite the Yoga Vida case as precedent to support your position, a court will give it little, if any, weight.

However, if you are a New York yoga studio and you are audited, courts in New York will give this opinion a lot of weight.

How did Yoga Vida win?

Yoga Vida has two classes of teachers: “staff instructors” and “non-staff instructors.”  The staff instructors are employees and the non-staff instructors are independent contractors. The Court found that Yoga Vida did not exercise control over the non-staff instructors and therefore, they were not employees.

Although the determination of whether a worker is an employee or an independent contractor is complicated, the basic test is whether the business exercises “control” over the worker. There are many federal and state tests to determine whether practices that regulate worker behavior constitute control. The more control the business has over the worker, the more likely the worker will be an employee. The less control it has over the worker, the more likely it will be an independent contractor.

In reaching its decision the Court found that Yoga Vida did not control the non-staff instructors because they:

1. made their own teaching schedules;

2. chose how they wished to be paid (i.e., hourly or on a percentage basis);

3. could teach anywhere they wished and market their classes at other studios to Yoga Vida students; and

4. were not required to attend any staff meetings or trainings.

The staff instructors, on the other hand, were subject to non-compete restrictions and were required to attend staff meetings and trainings. They were paid for teaching even if no students attended their classes.

The Court rejected the Board’s finding that Yoga Vida controlled the non-staff instructors. The Court called these factors “incidental control” that did not show enough control to establish an employment relationship. These factors were that Yoga Vida:

1. inquired if the instructors had proper licenses to teach;

2. published the master schedule on its web site;

3. provided the studio space for the classes;

4. determined the fee to be charged and collected the fee directly from the students;

5. provided a substitute instructor if the non-staff instructor could not find a substitute; and

6. received feedback from the students.

The Court rejected these incidental factors as insufficient to constitute control and said the requirement that the work be done properly is required equally of an independent contractor and an employee.

Guidance for  yoga studios in New York

If you are a yoga studio within New York and structure your relationships with your teachers the same way that Yoga Vidya did and are audited, you now have legal precedent to strengthen your case.  However, this case is not a silver bullet. If the facts of your case are materially different from those in the Yoga Vida case or if you are otherwise found to have exerted “control” over your teachers, you can still lose an audit.

Guidance for yoga studios outside of New York

The Yoga Vida case is not precedent if you are located outside New York and are audited. However, the federal and the state tests to determine control are similar. If you use the same structure as Yoga Vida, it will strengthen your case in general. I think it is a good practice to classify your teachers separately and to treat them differently the way Yoga Vida did. For those teachers whom you are classifying as independent contractors, you should exert as little control as possible over the way they perform their jobs. You want to build your best case so that, if you are audited, you are in a strong position to settle on favorable terms or to win.

Resources

Light on Law: A Guide to Independent Contractors and Employees for Yoga Studios and Wellness Businesses (Second Edition)

Gary Kissiah Light on Law Newsletter

 http://garykissiah.com/light-on-law-newsletter/

 

 

Don’t Be a Health Club!

A New Regulatory Problem For Yoga

As yoga has become a mainstream practice and turned into a multi-billion dollar industry, many regulatory agencies have taken note and are regulating yoga. Both the IRS and state taxing authorities are auditing yoga studios over the classification of teachers as independent contractors, state education boards have sought to regulate yoga teaching programs as secondary education schools, local sales taxes are being imposed on yoga studios, and ASCAP is collecting royalties from studios for performing music during yoga classes.

There is a new regulatory concern that may affect yoga studios across the country. Almost all states have laws that regulate the health club, gym and spa industry (“Health Clubs”). Health Clubs have a history of using unfair membership agreements, engaging in deceptive trade practices, and going out of business (which has caused their members to lose their advance payments).

Consequently, most States have passed laws that regulate the agreements that Health Clubs require their members to sign and require Health Clubs to post bonds to protect members in case they go out of business.

These laws require that specific legal language must be contained within membership agreements. They also prevent certain kinds of provisions-such as waiving legal rights-from being included within membership agreements.

New York has sought to impose its Health Club laws on yoga studios. Since New York is seeking to regulate yoga studios as Health Clubs, there is a risk that this will spread to other states. We have seen this occur in other regulatory areas.

Regulation in New York

In New York, the Attorney General sent a letter to a yoga studio asserting that it was in violation of the New York Health Club Services Law (the “Law”).  The Law defines a “health club” as a business offering instruction or facilities for the development of “physical fitness or well being.” The Attorney General took the position that the yoga studio was a “health club” within the meaning of the Law. As a “health club,” its membership agreement must comply with the requirements of the Law.

These requirements are: (i) posting a bond in case the Health Club goes out of business; (ii) including language in a membership agreement that paying the full amount in one payment is risky, (iii) giving members the right to cancel their agreement for a three day period; (iv) requiring that certain language be in bold face type; and (v) prohibiting provisions that waive a member’s legal rights.

There are civil penalties of $2500 for each violation.

If a “health club” loses it case before the Attorney General, it must also send a notice to its members that it has revised its agreement to comply with the Law and that the new agreement will be in effect in the future.

My Argument to the Attorney General

The Attorney General of New York permitted me to file a brief that argued yoga studios are exempt from the Law.  I am happy to report that the Attorney General was convinced by my brief and we won the case. However, it is important to note that this decision was based on the specific facts concerning the business of this studio. Other studios with different business models in New York may violate the Law. Also, studios located in other states may also be in violation of the local Health Club laws.

I have outlined the arguments that I made to the Attorney General below. I am providing this so you will have some insight into how you might present your case if you are contacted by the Attorney General in your home state. Naturally, you should hire a lawyer, but this should give you a head start on building your case!

Here is my argument:

1. I defined “yoga” as a spiritual rather than a physical practice. I relied upon the Yoga Sutras as authority. In Yoga Sutra 1.2, Patanjali defined yoga as the cessation of the fluctuations of the mind. Yoga Sutra 1.3 says that, when the mind becomes still, one becomes unified with the true Self. Thus, the principal concern of yoga is the transformation of consciousness. It is not physical fitness. I observed that, out of the 196 Yoga Sutras, only three referred to a physical practice. I also noted that “asana” (the basis for physical movement in classical yoga) refers to “seat” within the context of a meditation practice.

I quoted Dr. David Frawley, Nayaswami Gyandev McCord and Swami Ramananda who are included in the discussion of yoga on the Yoga Alliance website. All of these experts view yoga as a spiritual discipline to strengthen the point.

2. I compared my definition of yoga with quotations from the offerings of several gyms, health clubs and spas in New York City which all emphasize physical training, physical fitness and sports. This yoga studio does not offer the same types of classes or services as gyms, health clubs and spas

3. The Law defines a “health club” as a business offering instruction or facilities for the development of “physical fitness or well being.” This includes such businesses as health spas, sports, tennis, figure salons, health studios, gymnasiums, weight control studios, martial and “any other similar course of physical training.” By definition, a yoga studio is not within the list of businesses that are “health clubs.” I did make some technical arguments to show that this yoga studio is not in the business of developing “well being.”

Based upon my definition of yoga as a spiritual discipline, I argued that yoga studios are not “health clubs” within the meaning of the Law.

4. I  found surveys of the Health Club industry that the Attorney General and the City of New York had conducted. None of these surveys included any yoga studios. This made it clear that, based on precedent, they did not consider yoga studios to be Health Clubs. The New York State Department of Taxation and Finance also published some rulings that did not include yoga studios within the definition of Health Clubs.

5.  Based on an analysis of the Law, defining yoga as a spiritual rather than a physical practice and relying upon precedent, I concluded that the yoga studio did not violate the Law because it is not a “health club” nor does it enter into “contracts for services” within the meaning of the Law.

I want to emphasize that this studio is small and devotional. It does not offer any hot yoga, power classes, spinning classes, pilates or other classes that emphasize the fitness side of yoga. It is not a combination of a yoga studio and a gym.  If your studio has these types of offerings, it would be much harder to argue that you are not a “health club”.  Of course, this will depend upon the laws of the state where your studio is located.

Action Item

I recommend that you run  a search in your home state to see if it has any Health Club laws. The search can be as follows:  “_______ (name of your state) health club regulation.”

If you state does not regulate Health Clubs, then you are in luck.

However, if your state does regulate Health Clubs, they you can either (i) hire a lawyer to advise you if you are subject to the laws; or (ii) read the law and make your own determination.

The benefit to using the lawyer is that he or she can advise you if your studio is covered by the law. If you are covered, you will need the lawyer to amend your membership agreement so that it contains the required language and complies with the law. If you are not covered, then you do not need to do anything at all.

If you decide to make your own determination, take the most conservative view. You may find that the law is ambiguous as to whether you are covered or not. In that case, the safest approach is to comply with the law. It may be fairly simple to include the required provisions in your membership agreement and they are designed to protect your members anyway.

Light on Law Newsletter

Please sign up for my Light on Law newsletter so you can keep on top of current legal issues in the yoga and wellness world. Please click here to subscribe:

http://tinyurl.com/clakwyn

Light on Law Books and Other Resources

My Light on Law series of books provide yoga studios and teachers with everything they need to know about the law and yoga. These books also include large collections of legal templates. For information about these books and my other offerings, please visit my website:

http://garykissiah.com/#top