Workers Comp. case ??

[cj's dad]

A young lady friend of mine who is as nice as they come, works full time in a bar/restaurant as the afternoon/evening cook. She has worked at this place for several years now. When hired, she agreed to work for cash only which was the condition set before her by the owner. Of course she cannot prove that but I know it to be true. She desperately needed a job so she agreed. No H.S. diploma, little one at home, etc...

Last week, she cut herself on the index finger. She cleaned and bandaged the cut and continued on. The next day her hand was swollen terribly. She went to the hospital, no insurance, and it is determined she has a staph infection. Received antibiotics and signed herself out. Hand gets worse, checks back into the hospital and is there as of now. My hope is that even though the employer did not pay into Workers comp. my friend may have a case as she had little choice but to work "under the table".My advice to her was to consult an attorney for is/her opinion. She is afraid of being fired.

Anyone know of a similar case ?

[TJDave]

Of course she cannot prove that but I know it to be true. She desperately needed a job so she agreed. No H.S. diploma, little one at home, etc...


Your friend owns her employer's nuts and doesn't know it.

And... He's going to deserve everything that's coming. ;)

[prospector]

Your friend owns her employer's nuts and doesn't know it.

And... He's going to deserve everything that's coming. ;)
maybe,
if she can prove the income...
next question, did she pay taxes on it as income..its those damn state people who'll be harder than the feds...
she may want to rethink this..
either way..her employer is in serious trouble with the feds..just takes a phone call..

[wisconsin]

A terrible situation. The owner's going to be in hot water, but so is she. He is unlikely to even have a workman's comp policy in place to begin with, so he'll be on the hook for the medical coverage. Look for the lies to begin spewing from both of them.

[TJDave]

maybe,
if she can prove the income...
next question, did she pay taxes on it as income..its those damn state people who'll be harder than the feds...
she may want to rethink this..


Nah...If the info is accurate and unless she's been locked in the kitchen for years, it's easy to prove her case. Plus, she's probably a single mom with a dependent. She doesn't owe taxes.

This guy is the lowest of the low. As a former restaurant owner now a consultant I'll tell you it's only a question as to how much her attorney wants to punish this prick.

I say hang the bastard. :mad:

[Bettowin]

How is she going to like being an owner? :)

[Hanover1]

At issue would be any document/s she may have signed prior to employement that declare her an independent contractor, a tactic many have used to limit liability in such cases. While liability may exist, it could be greatly diminished if signed documents waiving rights is produced i.e employee agreed to be held soley responsible for medical treatment/insurance. If the guy had fewer than a set number of employees, he is not required to carry WC anyways.
A State savvy WC lawyer is required here, as statutes vary from state to state. And in certain states, a Defendant is never required to settle, or even mediate. Treatment only, with 1 2nd chance opinion per side. It can be a long road from injury to closure, so keep case open by continued treatment via whatever means needed to do so. (Something the defense will never tell you, and your counsel would be remiss in overlooking).

[TJDave]

At issue would be any document/s she may have signed prior to employement that declare her an independent contractor, a tactic many have used to limit liability in such cases.

I can tell you with absolute certainty that there is no way she could be considered an independent contractor...Zip, nada.

[JustRalph]

I am with TJDave on this one......get an attorney if the owner balks at all.....

If he was smart he would take care of the Doctor bills, pay her a nice 10% push on her salary for the time she is out and send her flowers every day.........then bring her back with a promotion and put her on the books.........lesson learned

I will run it by the wife........she will probably laugh........

[ceejay]

She doesn't owe taxes.

What about self-employment tax? Isn't that about 15% right of the top of schedule C. profits (the equivalent of both halves of FICA).

[lsbets]

Never pay an employee under the table - this is a perfect example of why. I know people who refuse to pay overtime, they pay the overtime as cash. Stupid. All it takes is one pissed off employee and they are screwed. I eat close to 20 hours of overtime a week - its worth it to have good employees on when I need them, and paying them the way the law says keeps my ass covered.

As far as the medical bills, its simple - pay them. Most business owners I know here do it like I do - self insure. I've had one employee have to go to the hospital this year - he cut the tip of his finger off. He wanted to wrap it and keep working - I made him go, drove him there and paid the bill - it was just under $400. Not very much money compared to insurance premiums, and well worth it on many levels.

[TJDave]

What about self-employment tax? Isn't that about 15% right of the top of schedule C. profits (the equivalent of both halves of FICA).

She was not self-employed. The employer is required to collect, pay and report.

[Hanover1]

I can tell you with absolute certainty that there is no way she could be considered an independent contractor...Zip, nada.

If she didn't sign anything to that effect, then you are correct. However most employers who play that game start with these type of documents before hire. It was just an observation based on experience......

[TJDave]

Unless the customer was willing to eat whenever she decided to cook; it makes no difference what she signed.

I could sign an agreement saying I was a three legged pig but that don't make it so...

Except to my ex-wife. ;)

[Pell Mell]

The only problem she might have is if she's collecting welfare, food stamps or medicaid and having unreported income.

[Hanover1]

Unless the customer was willing to eat whenever she decided to cook; it makes no difference what she signed.

I could sign an agreement saying I was a three legged pig but that don't make it so...

Except to my ex-wife. ;)

Defendants are worse than ex wives........

[Hanover1]

Unless the customer was willing to eat whenever she decided to cook; it makes no difference what she signed.

I could sign an agreement saying I was a three legged pig but that don't make it so...

Except to my ex-wife. ;)

There is such a thing as signing away your rights........

[TJDave]

The only problem she might have is if she's collecting welfare, food stamps or medicaid and having unreported income.

Still, this wouldn't absolve her employer in any way and if it could be proven he knew she was collecting benefits it would be collusion. Far worse for him.

[DJofSD]

I have to agree with what has been said already: the CA State Franchise Tax Board is going to put this guys nuts into a vice. He made a huge mistake.

In this instance, yes, she should hire a lawyer and some one should be there to protect her from a possible unscrupulous one. Minimally, she needs to recover any and all expenses relating to her medical care, lost wages and get her into a proper status for state unemployment insurance. Oh ya, then there's the little thing about Social Security.

P.S. Oops -- I don't know why I thought this was about some one in CA. Substitute the correct state -- all of the tax collector agencies are the same (but CA needs the money really badly).

[TJDave]

There is such a thing as signing away your rights........

Not under the law.

For instance:

I could agree to work for less than minimum wage or under unsafe working conditions but the agreement would be ruled invalid. The IRS has specific guidelines that determine self-employment status. Side agreements don't matter. The law is the law. You can't agree to opt out.

[Hanover1]

Not under the law.

For instance:

I could agree to work for less than minimum wage or under unsafe working conditions but the agreement would be ruled invalid. The IRS has specific guidelines that determine self-employment status. Side agreements don't matter. The law is the law. You can't agree to opt out.

No argument here my friend, however folks do hire on as independent contractors everyday, and as such, are responsible for their own tax situation and medical relief. It pays to read what you sign in this regard, as it is binding, as contracts go. I will not toss out any fictional scenario to further explain this. Here again, if she signed nothing it is all mute anyways. And yes, you can work for someone else, and be soley responsible for your well being, with exception to safety issues, and here is where we are at for the sake of argument. Having been on both sides of suits of this nature, I managed to grasp a general idea of rules of engagement...what you sign means alot. It is up to opposing counsel to mitigate the nature of the situation. Thats why they get 500 an hr.... :rolleyes:

[Tom]

I made him go, drove him there and paid the bill - it was just under $400. Not very much money compared to insurance premiums, and well worth it on many levels.

Wow. Loose cannon here for sure. You did not rely on the gubbermint to take care of things, you did it yourself, intelligently?

Man, Obama is gonna be after you for this! :eek:

[jonnielu]

Not under the law.

For instance:

I could agree to work for less than minimum wage or under unsafe working conditions but the agreement would be ruled invalid. The IRS has specific guidelines that determine self-employment status. Side agreements don't matter. The law is the law. You can't agree to opt out.

I think that it would be tremendously instructive for you to produce that law.

While you are rustling that one up, if you happen to run across a signed document from the IRS that determines anything, I'd like to see that too.

jdl

[Hanover1]

I think that it would be tremendously instructive for you to produce that law.

While you are rustling that one up, if you happen to run across a signed document from the IRS that determines anything, I'd like to see that too.

jdl

Thank you.......

[TJDave]

I think that it would be tremendously instructive for you to produce that law.

You want me to cite case law??? No thanks... Unless you pay for the research.

Suffice to say that if a contract violates public policy it will be ruled invalid.


While you are rustling that one up, if you happen to run across a signed document from the IRS that determines anything, I'd like to see that too.

You and I both know the determinative regulations for claiming independent contractor status, signed or otherwise. You're just yankin' my chain. Typical, from the guy who says we don't have to pay taxes.

[Hanover1]

You want me to cite case law??? No thanks... Unless you pay for the research.

Suffice to say that if a contract violates public policy it will be ruled invalid.




You and I both know the determinative regulations for claiming independent contractor status, signed or otherwise. You're just yankin' my chain. Typical, from the guy who says we don't have to pay taxes.
Considering over 40% do not pay taxes at this time, I take a size 8 hat please.........

[jonnielu]

You want me to cite case law??? No thanks... Unless you pay for the research.

No, case law is generally worthless. You said something about THE LAW, which would imply that there is a law that would be applicable to the parties involved. Should be easy to produce for someone that has extensive knowledge of it... as you seem to.


Suffice to say that if a contract violates public policy it will be ruled invalid.


If you have so little respect for your own rights and the rights of others... then I suppose that it may suffice for you. It does not suffice for me. The Constitution prohibits Congress from infringing the peoples right to contract.




You and I both know the determinative regulations for claiming independent contractor status, signed or otherwise. You're just yankin' my chain. Typical, from the guy who says we don't have to pay taxes.


I know what I have experienced, you seem to know what you have heard tell. Which is fine as long as the people telling you aren't yankin' your chain for some reason.

Of course, having several million in your herd that you can clip for several trillion a year might be a good reason to spread some bullshit. Especially if most people are sufficed with what they hear tell.



jdl

[JustRalph]

My wife runs a restaurant in the appropriate Jurisdiction, she pointed me right to it......and she believes she will be ruled " an employee" no matter what she signed, or any oral agreement they made.........she pointed me here

http://dllr.maryland.gov/labor/wagepay/wpempindcont.htm

Btw, LS is right. I did the same thing he did when I ran an HVAC company. Had a guy get his hand caught in a dumbwaiter and mangled it pretty good. He was screaming about Workers comp....... I paid him is wages for 3 weeks, he came back to work, paid the 5k doctor bill and dodged a rate hike in insurance/workers comp premium of what would have been over 5k a year........ no harm, no foul.

[cj's dad]

My wife runs a restaurant in the appropriate Jurisdiction, she pointed me right to it......and she believes she will be ruled " an employee" no matter what she signed, or any oral agreement they made.........she pointed me here

http://dllr.maryland.gov/labor/wagepay/wpempindcont.htm

Btw, LS is right. I did the same thing he did when I ran an HVAC company. Had a guy get his hand caught in a dumbwaiter and mangled it pretty good. He was screaming about Workers comp....... I paid him is wages for 3 weeks, he came back to work, paid the 5k doctor bill and dodged a rate hike in insurance/workers comp premium of what would have been over 5k a year........ no harm, no foul.

Thanks Ralph- I'm trying to help out this young lady who is at this point frightened and intimidated. All she wants is her lost wages and hospital bills paid- nothing more, but once again she is afraid of being let go.

Thanks all for the input !!

[TJDave]

Jonnielu, I wish you well on your trek to Oz. Say hello to Irwin Schiff when you get there.

[JustRalph]

Thanks Ralph- I'm trying to help out this young lady who is at this point frightened and intimidated. All she wants is her lost wages and hospital bills paid- nothing more, but once again she is afraid of being let go.

Thanks all for the input !!

Does she live anywhere near Arundel Mills? ..........I know someone who might be hiring over that way............ ;)

[ElKabong]

the lady has little to worry about...the state/ irs folks won't bother her, but w/ go after the employer w/ both barrels....unless she has a record i doubt they'll do anything to her

as much as i hate frivilous lawsuits, this doesn't sound like one...the employer needs to make this right, and then some..

[WinterTriangle]

At issue would be any document/s she may have signed prior to employement that declare her an independent contractor, a tactic many have used to limit liability in such cases.

TJ is 100% correct. I won such a case with the IRS against an employer, who claimed I was an IC (I appraised commercial and residential property).

Doesn't matter what he said, the IRS bases it on exactly how the employee performs the duties of their job. I used the company's secretary, who typed up all my work. I used his offices to make all my phone calls, etc. I did not supply my own paper, office supplies, etc.

There's a lot more, but the employer lost big time by trying to call me an IC. :)


Unless she really hates the employer, I'd say she should just ask him to pay her medical bills, and a short term disability/vacation, until her staph heals up.

Unfortunately, in the restaurant business, they are just looking for a warm body, who can do the work and keep a schedule. It's not like she is skilled labor, and if they value her at all, it would be more on a *personal* level. Otherwise, there are probably hundreds of single moms looking to have her waitress job?

As someone pointed out, if she is collecting any kind of benefits from the state or feds, she will be in trouble too, and probably have to pay it back if she had income that was unreported.

I hope everything works out for the young lady. Sounds like she and her employer made some bad decisions.

It would be *very* difficult, Ralph to call anyone working in a restaurant an IC. I can't imagine how that could be done? She is using her employer's premises, equipment, and his other employees to perform 100% of her work!

[jonnielu]

My wife runs a restaurant in the appropriate Jurisdiction, she pointed me right to it......and she believes she will be ruled " an employee" no matter what she signed, or any oral agreement they made.........she pointed me here

http://dllr.maryland.gov/labor/wagepay/wpempindcont.htm

Btw, LS is right. I did the same thing he did when I ran an HVAC company. Had a guy get his hand caught in a dumbwaiter and mangled it pretty good. He was screaming about Workers comp....... I paid him is wages for 3 weeks, he came back to work, paid the 5k doctor bill and dodged a rate hike in insurance/workers comp premium of what would have been over 5k a year........ no harm, no foul.

Is that a law?

jdl

[jonnielu]

Jonnielu, I wish you well on your trek to Oz. Say hello to Irwin Schiff when you get there.

Right... you've got nothing of substance to show, only fairy tales to cite, and I'm in Oz.

jdl

[jonnielu]

TJ is 100% correct. I won such a case with the IRS against an employer, who claimed I was an IC (I appraised commercial and residential property).

Doesn't matter what he said, the IRS bases it on exactly how the employee performs the duties of their job. I used the company's secretary, who typed up all my work. I used his offices to make all my phone calls, etc. I did not supply my own paper, office supplies, etc.

There's a lot more, but the employer lost big time by trying to call me an IC. :)


Unless she really hates the employer, I'd say she should just ask him to pay her medical bills, and a short term disability/vacation, until her staph heals up.

Unfortunately, in the restaurant business, they are just looking for a warm body, who can do the work and keep a schedule. It's not like she is skilled labor, and if they value her at all, it would be more on a *personal* level. Otherwise, there are probably hundreds of single moms looking to have her waitress job?

As someone pointed out, if she is collecting any kind of benefits from the state or feds, she will be in trouble too, and probably have to pay it back if she had income that was unreported.

I hope everything works out for the young lady. Sounds like she and her employer made some bad decisions.

It would be *very* difficult, Ralph to call anyone working in a restaurant an IC. I can't imagine how that could be done? She is using her employer's premises, equipment, and his other employees to perform 100% of her work!

Wow, what court did you and the IRS take this to?

jdl

[TJDave]

Unless she really hates the employer, I'd say she should just ask him to pay her medical bills, and a short term disability/vacation, until her staph heals up.

More is required. Her employer is an abusive thief. If allowed to skate he'll only become more emboldened.




Unfortunately, in the restaurant business, they are just looking for a warm body, who can do the work and keep a schedule. It's not like she is skilled labor, and if they value her at all, it would be more on a *personal* level. Otherwise, there are probably hundreds of single moms looking to have her waitress job?


From my personal experience, this is not how successful operators run businesses. Employees are valued and respected, both personally and professionally.

[lsbets]

Unfortunately, in the restaurant business, they are just looking for a warm body, who can do the work and keep a schedule. It's not like she is skilled labor, and if they value her at all, it would be more on a *personal* level. Otherwise, there are probably hundreds of single moms looking to have her waitress job?



Really? Wow, news to me. Everyone I know in this business wants to keep the same people around. Cooks who actually know how to cook and servers who know how to make people happy and produce results. A good server can add 20% to the average ticket, and get paid very well for what they do. A bad server can put you out of business and needs to be fired right away.

[JustRalph]

Really? Wow, news to me. Everyone I know in this business wants to keep the same people around. Cooks who actually know how to cook and servers who know how to make people happy and produce results. A good server can add 20% to the average ticket, and get paid very well for what they do. A bad server can put you out of business and needs to be fired right away.

I didn't want to jump in that mess of a post.........but since you did.......

This part got to me a little.......

"they are just looking for a warm body, who can do the work and keep a schedule. It's not like she is skilled labor, and if they value her at all, it would be more on a *personal* level."

This stuff about Warm Body hiring is so wrong. One of the surest ways to failure in the Rest. Business is to practice what my wife calls "warm body hiring" Btw, my wife just had two employees from her previous store transfer 300 miles to follow her to her new store, just to work for her. Of course they are single, no kids etc.........but you don't find that happening very often when the boss is just looking for "Warm Bodies" ......

[skate]

Seems like a lot of stories with nothing decisive.

One case is very much different from another.

How much damage is critical.

What was lost?


Time, that's nothing worth anyones bother.
Both she and the owner knew..., but that means nothing to the lawyer who most likely wont want the case. She's as wrong as the Owner.

you'll get nothing from the Hospital.

Both she and the owner knew... which might bring about a follow thru from some gov. agent... means nothing.

Rest up and the best to you.

the-skate concludes, you People watch TOO Much TV. Relax...

[WinterTriangle]

Wow, what court did you and the IRS take this to?

jdl

Perhaps you misunderstood when I said I "won my case." There was no need to go to court. I was assigned a special agent thru the IRS, and after presenting details of my work, how it was performed, and what the requirements of my employer were, the IRS themselves determined that I was *not* an independent contractor, after investigating the records and practices of the employer, who was unable to present evidence to the contrary. It was nice to receive a % of FICA, SS, Medicare etc. taxes I had paid. I didn't even know I wasn't an IC, until one day I was sending in my taxes I owed, a friend who owned a business asked me why I was paying all these things myself. I was 22 then. "Because my employer sent me a 1099?"


As for my advice to the young lady, the question I was answering previously was the one posed: "she is terrified she is going to lose her job." The question did not ask what her most legally-correct option was. Taking a job and agreeing not to pay taxes, or report tips, is not a wise decision, because it doesn't benefit her.

I guess I don't *get* why anyone would arrange to work under-the-table, then negate doing it by then reporting the activity to the IRS?

She could have reported her income and there is a line on the form for unreported tips.... but if the employer wasn't claiming it, it would have triggered an audit anyway. Both have intentionally failed to obey laws. (Guys often work under the table when they don't want to pay child support.)


As for restaurants and warm bodies.....not all, of course. Guess you never worked yourself through college at a string of major mountain resorts, though. ;) We were warm bodies, plain and simple.

[menifee]

A young lady friend of mine who is as nice as they come, works full time in a bar/restaurant as the afternoon/evening cook. She has worked at this place for several years now. When hired, she agreed to work for cash only which was the condition set before her by the owner. Of course she cannot prove that but I know it to be true. She desperately needed a job so she agreed. No H.S. diploma, little one at home, etc...

Last week, she cut herself on the index finger. She cleaned and bandaged the cut and continued on. The next day her hand was swollen terribly. She went to the hospital, no insurance, and it is determined she has a staph infection. Received antibiotics and signed herself out. Hand gets worse, checks back into the hospital and is there as of now. My hope is that even though the employer did not pay into Workers comp. my friend may have a case as she had little choice but to work "under the table".My advice to her was to consult an attorney for is/her opinion. She is afraid of being fired.

Anyone know of a similar case ?

C.J.'s dad: She needs to file a workman's comp. claim. If she is in Maryland, here is the website: http://www.wcc.state.md.us/Adjud_Claims/Forms.html. The claim will get adjudicated in an administrative proceeding. If she is determined to be an employee who was injured in the course of her employment, an Administrative Order will issue against the employer which it will be required to pay. The employer may also be fined for not paying workers comp insurance for its employees. If the employer cannot pay the claim, then she will be compensated from the uninsured employers' fund (which is a fund funded by employers for this situation). In some states, the owner of the business (even if it is an LLC or corporation) may be personally liable to the fund for those costs, though that is not a concern of your friend. A good workman's comp. attorney would probably take the case because he or she knows they will get paid from the fund. I don't think proving that she was an employee will be a problem if she has been working there awhile. Everyone claims that their employees are independent contractors - that is a bs argument and will not work. The difficulty may be proving that the accident occured on the job. If I were the employer's lawyer that is how I would challenge it. Hope this helps and good luck to your friend. Let me know if you have any questions or concerns.

[Robert Goren]

The sad part of this is that things are so bad that she had to take this kind of job.