Briefly….
Signed on to work for owner builder in CA. Hourly/weekly rate. Before the job actully got rolling the HO made outrageous demands and I said we can’t work together any more. He wasted my time on the last week and I told him if he can’t get his stuff organized, finalize design etc..I still expect to be paid. He agreed.
Upon severing our relations I said I won’t charge you for the entire week and just keep the “tool/material” deposit which was 1/2 half my pay. I had been paid for 2 weeks aty $800 a week to this point.
He flipped out and is initiating all kinds of legal trouble for me. Small claims over the deposit , $450. Threatening to have me fined for operating with out a contractors license. Although no contracts were signed or formally preseneted I made the mistake of presenting him with options in the form of “quasi contracts” via email. Things like we’ll cap the job at x dollars and x weeks, it will progress like..blah blah blah. he never agreed to any of it and nothing ever got close to being firmed up and signed.
I’m sure he’ll do more , probably fabricate all kinds of lies etc…
Nothing is in writing. Even if I pay him the deposit I feel he’ll still attempt to make my life hell.
He is not obtaining permits, has a phony business set up to avoid taxes on materials. He failed to follow through with the “owner builder” agreement which makes him my employer and contractor. I’ve never called the law down on anyone but feel it may be my only defense being an offence.
Any advice for getting out of this one? I’ll never work for an owner builder again so please no 20/20 hind sight<G>
Thanks !!
STJ
Replies
He can probably get the CSLB to fine you for being a contractor without a license, since you were acting like a contractor (those emails, taking a deposit) and you aren't.
He may be able to get something from you in small claims court.
If you have evidence of sales tax evasion, contact the Board of Equalization and present that evidence. Report him to the permit department. If you believe he broke employment laws, talk to the EDD and see what their process is.
Basically, you're screwed. But you already knew that.
Hi,Well..the "deposit" was just funds for materials and tools he wanted me to purchase for him.The nature of the emails was never too specific and always based upon the weekly/hourly rate but figured out over what the project would take. The bottom line was always figured out to a daily or hourly rate although there were mentions of "labor deposits". He kept asking if it could be done faster and I'd say I don't have the machinery to do it, he'd counter with an offer to advance money for tools. Deposit probably not the right term. Loan more appropriatte. I didn't know that even suggesting a contract is illeagal. Like I said these we're all ideas to work within his budget. The only agreement we had was a verbal owner builder for which he did not fufill his obligation.There is NOTHING signed. Several ideas made it to print but nothing outlined specifically that they apply to me. My name appears no where. It is more obviously an estimate of what it would cost him by anyone to get the work done.Thanks,STJ
Edited 3/27/2005 12:13 pm ET by STJ
"an offer to advance money for tools."That part sounds like a tool allowance for an employee.The rest of it is convoluted.
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I am an admirer of paradoxical situations in life.Let me congratualte you on this one, FWIW. You may have set yourself up for charges and fines of operating as a contractor without a license and now you are staarting a thread inviting others from around the world to give you advise practicing law without a license ( except BW and SGHLAW of course)LOLfor the record - I don't agree with licensing requirements for the most part. ( that oughta really get this thread going!)
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As I've said..I'm finding it real hard to believe that saying "your job will, at the weekly pay rate (hourly-figured by the week not a salary) we have agreed upon, take x weeks and cost you x dollars" is a contract.I'm starting to think my defense is an offence. I don't think emails will be holding up too well insmall claims court. No lawyers in CA small claims. I don't "exibit A" and email detailing....I also doubt it will have much clout as the law is not intent but action. Yea I intended to drive 120mph but kept it at 65.I have him COLD for the following:Illeagal Owner Builder agreement-He didn't follow through with paper work nor pay WC, SS etc..No Building PermitsPhony Business tax dodgeAny one ever had to "unlease the hounds" as it were to keep some one like this at bay?STJBTWI each time explained I'm not a contractor and can NOT sign any contracts. ALL were timne money suggestions. I explained the law to him many times.Somebody give me some good news!!!<G>
Edited 3/27/2005 12:58 pm ET by STJ
Here's an example of the only way I said the job can work: Quoted from an email-
"I anticipate 120-140 hours. Some days will be 4 hours more will be over 8 hours.
At 3 1/2 weeks per our original agreement, $800 per week($20 hour), this is $2800"This is as close as any discussion got to a contract.Thanks,STJ
OK, You want to play this out for pracrtice?Let's pretend that I am the judge.you just introduced evidence into court here that references an "agreement". I can't accept that evidence of a contract without seeing the original contract. Sop - What was that agreement - be specific now
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I'm not a lawyer. Former VP of Human Resources ... and former President of an HR consulting firm.
Here is a reasonable article (not too much legalese) on employee vs contractor on California... plus some on the IRS tests.
http://www.methvenlaw.com/Handout_for_Independent_Contractors_and_Consultants_In_California.html
Here is the Calif Division of Labor Standards Enforcement page on the topic:
http://www.dir.ca.gov/dlse/FAQ_IndependentContractor.htm
Here is how I would present it... if I were in your shoes (and note... this is how I would present it... not that it is necessarily correct):
The employment relationship is based on the tests applied to determine contractor or employee. (see above links)
The "estimates" are simply work-product as a result of the employment relationship. "Budgets" are not unusual items to be developed by an employee with knowledge of the area being budgeted. "Estimates" = "Budgets" in your scenario.
Advances for tools and materials are not unusual in an employee relationship. Any money not used (receipts) is due back to him.
salary arrangements are pro-rated on start date... and each week thereafter is due in full (no matter if you only worked one hour of the week). Example... you start on wednesday. Week ends on friday. You are only due a pro-rated pay for wednesday, Thursday, and Friday. You work two additional weeks.. plus 1 hour on the following Monday... when you are fired. You are due three weeks salary plus the prorated first week.
paperwork for withholding, I-9, etc are the responsibility of the employer.
You have stated repeatedly that you applied to an ad in the paper for a carpenter... NOT to an ad for a contractor. YOUR expectations were driven by HIS ad... for a Carpenter. Thus... you have established what your expectations were based upon HIS advertisement (which, therefore, should indicate HIS intent)
HE did not provide you with various notices, as required by law. For required postings in California, refer here: http://www.dir.ca.gov/wp.asp Baaaaad boy... and California is NOT employer friendly about ommisions.
***
Now... did he pay you with checks from his business? If so... good item to be used against him... ongoing business enterprise.
My best guess is that the guy is blowing smoke. BUTTTTTT... you need to educate yourself on the regulations effecting your circumstance. Assume the worst... hope for the best.
You need to make the determination of whether to present a pre-emptive strike against his position. You would do this by making a claim for unpaid wages with the Division of labor Standards Enforcement http://www.dir.ca.gov/dlse/HowToFileWageClaim.htm
Again... not a lawyer... and I would encourage you you to consult one. This may... repeat MAY ... assist you in your discussion with said attorney.
Good luck.
Edited 3/28/2005 12:56 am ET by Rich from Columbus
Not going to tell you what to do STJ, however, fear of someone doing something is far more scary than someone actually just doing it. It is a motivator.
Up here you can lead off with "Without Prejudice" to offer a truce or agreement that cannot be dragged into court. Not sure if it is included in the US legal system.
Nuf Said.
L
GardenStructure.com~Build for the Art of it!
Just keep practicing that line and you'll do OK in small claims courtbut you'll do even better to consult an attorney as already suggested here many times. That atty may be prevented from accompanying you into the courtroom, but no-one can keep you from talking to one. He/she can help prepare you far better than the advice of a bunch of yahoos ( us ) from all over fifty states and Canada, each with a diferent legal setting to refer to . THE LAW IN TYOUR STATE IS THE ONLY ONE THAT COUNTS
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And hopefully the lawyer will explain how to describe this situation properly.One thing is the whether he got a "deposit" or and "advance against reimbursable expenses".Little things like that can really tip the scales.
Even if you Are a licensed Contractor here in Cali, you can't work 'hourly', Cost Plus or even Time & Mat, it's against the law. We can only work Fixed Price now.
The best of luck with your predicament bro.
You sure about that?....I'm hard pressed to believe that a state reg. prohibiting a licensed, bonded firm from writing an hourly, or T+M, or cost plus contract would stand up to a court challenge...
I've only visited the state ...
but kep in mind ... it IS California we're talking about here!
more fascist than footloose ...
Jeff Buck Construction
Artistry in Carpentry
Pgh, PA
Well, yes....don't get me started on all the things that the Gummint should keep its' cotton pickin hands off of....but remember were are talking about buisness here, i.e. the right to enter into a contract...and when we talk money instead of personal freedom, the Gummint listens....heck, we go far enough on the current path you'll probably be able to contract yourself into Bondage (no jokes please) soon...
Agreed. A mutually beneficial contract, with remuneration reasonably commensurate to the value of services, ought to stand up in court.
I'm ok with the govt. legislating 24hr cooling-off periods, and protecting the mentally deficient, but surely at one point adults can see to their interests and contract accordingly.
Edited 3/30/2005 1:53 am ET by Pierre1
As others have said, spending a few dollars with an attorney who is knowledgeable about construction contracts and employment law would be wise at this point.
You could unleash the hounds, or release them...
But first, I suggest you search the local court records for any sign of this guy having been through the mill before: judgements, cases he might have brought forward or responded to, liens on his property, bankruptcy proceedings, etc.
Ask local tradespeople (elect., plumbing, HVAC, etc.) what their experiences were.
You might also want to Google his name. I did that for a customer with whom I was experiencing some frustrations. Turns out his business practices had been the subject of several negative media reports ...
Maybe this guy's MO is to embroil well-meaning tradespeople, luring them in with a help wanted ad. He tosses a bit of money but doesn't get the paperwork done. The general idea is to bamboozle people into working for peanuts, and iffen they balk at this, he intimidates them into submission.
There are such animals out there, building their wealth at the expense of the honest working man. You may have just crossed paths with one of these predators.
Edited 3/27/2005 5:37 pm ET by Pierre1
good post P
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"Signed on to work for owner builder in CA. Hourly/weekly rate."
"Nothing is in writing"
" keep the "tool/material" deposit which was 1/2 half my pay."
"Although no contracts were signed or formally preseneted I made the mistake of presenting him with options in the form of "quasi contracts" via email."
"Things like we'll cap the job at x dollars and x weeks, it will progress like..blah blah blah. he never agreed to any of it and nothing ever got close to being firmed up and signed."
I am not sure if this "deal" is fish or fowl.
From what I have heard CA has strong laws to protect HO and require writen contracts from the "contractor".
But you where suppose to be an "employee". And talk of withholding and the like?
And why would an employee get a "deposite"?
"But you where suppose to be an "employee". And talk of withholding and the like?And why would an employee get a "deposite"?"Right! He always avoided the business of the owner bulder saying "we'll get the paper work" but never did. I should have done it day one but he snowed me. Still, no contract either so.....As I said, the "deposit" was just available cash for materials he asked me to get, not towards labor. Nothing signed , no reciept etc.. I bought some items and gave him recipts for them immeadiatly.Thanks,
STJ
"As I said, the "deposit" was just available cash for materials he asked me to get, not towards labor. "Based on that it was not a deposit, but rather and advance for reimbursable expenses. That is how it would be handled for an employee.But as an employee there would never be an any discusions of time frame or maximum cost. Only $x/day. If took 1 day that is what the pay would be, if it took 10,000 days then that is what you would be paid. And of course you could be fired/layed off at anytime.Sounds like you both started without any meeting of the minds about what the "job" was about.I wonder what the labor board would have to say about this.
He is not obtaining permits, has a phony business set up to avoid taxes on materials.
Huge red flag should have knocked you off your feet!
Dont hang around here asking for legal advice. Call you're lawyer fast. Spend the $75 for the 1/4 hour consultation and make sure you are heading in the right direction. The #1 most important thing that lawyers need is to get involved early.
blue
Just because you can, doesn't mean you should!
Warning! Be cautious when taking any framing advice from me. There are some in here who think I'm a hackmeister...they might be right! Of course, they might be wrong too!
same red flag to me.I run from any customer who wants to skirt the regs in any way.That is a big help. on a positive side of it too - I do consuulting to shepherd difficult permits through the planning board. ( I spent ten years on the board so I know it pretty well, and how it is interpreted. That makes my fee worthwhile for those who want to avoid delays and frustration chasing rabbits) I think it is partly because I have a rep for not trying anythiong funny that they are willing to accept most of my statements at face value.Trust is a valuable commodity.Another example - way back when - maybe 1989 or 90 I was doing some handyman work for one of out local millionaries on saturdays. He asked me end of day if I expected to be paid cash or if a check would be OK. I was suprised when he told me that wsome of the girls in his household staff wanted the cash 'under the table' deal. I told him clearly that I kept books and recorded every penny and every cost in a straight forward business manner, and that anyone who ever doubted my billing could see it verifyed, implying that I was ready right there to expose myself. Apparantely he was impressed enough that I was trustworthy that I ended up managing his accounts here for over fifty grand a month for several years. The housekeeper in question didn't last another week.I don't expect this guy will ever be nominated to a federal position or run for public office, but he likes to do things right. That's how busimessmen are. It costs money to do things wrong - in the long run anyway
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Piffin, when they ask me if I can discount for cash, I always tell them no becuase "I'm going to run it through the books anyways!'.
there isn't any sense trying to cut uncle sam out of the equation. There's already enough legal loopholes.
blueJust because you can, doesn't mean you should!
Warning! Be cautious when taking any framing advice from me. There are some in here who think I'm a hackmeister...they might be right! Of course, they might be wrong too!
Then the ones who cut Uncle out by keeping the cash off the books end up complaining that they cannot prove to the bank they have adequate income to cover the loan they want for__________!
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Warning, i haven't read all these posts nor studied all the facts but it seems like he has a *whole* lot more to lose than you. I think you should inform him that all his dirty laundry is going to become well known if gives you one bit of grief.
It might go something like this...i'm assuming his name is bh (butt head)
you> (nice tone, paper in hand) Look bh, according to my records, you owe me $$$ (hopefully > tool deposit). Do you really want to go to court over this?
bh> <beep><beep>...yes
you> OK, but realize that you have a whole lot more to lose than I do. Plus it'll become well know that you're doing <shady dealing one> <shading dealing two> ... Plus according to my lawer (ok...a bunch of guys on the web...one of which though is a lawyer) i'm an employee anyway.
bh> <lots of hot air><more threats> <delay> ok forget it, but i'll never hire you again
you> have a nice day ;)
Personally i think you're totally in the drivers seat but who knows some people, even bh, may not do the rational thing.
PS. Don't give up on owner builder's. I'm one and i think i'm pretty darn easy to work with...and rational :)
Any advice for getting out of this one? I'll never work for an owner builder again so please no 20/20 hind sight<G>
No advice on this one. I would like to point out that I've successfully been both the HO employer and employee (on different projects). The situation can work very well. Sounds to me like somebody needed to take charge, and nobody did.
PAHS Designer/Builder- Bury it!
been to small claims here a number of times , I always took someone else or was a material witness
I always consider it a grudge match no matter who so called wins
I one case I supponed in a guys sister , his daughter my wife and a assistant after which I found out he had no money but was a front man for a bunch of assho33es
he and his lawer had to make 2 rond trips of nearly a 100 miles each
in the mean time he nearly split up with his gf figgering the daughter was against him
I ALSO MADE HIM REMOVE A SIGN WHICH HE PUTup due to the fact it contravined regulations as he applied 1 day after i applied for a sign accross from his (actually he was a head of me applying but they backdated my application as the person in charge diden't like him either}
In my experence in small claims it takes a long time to get in and if hauled in ask for a contiunce which here gets you another 30 days
after which if you lose plead poverty and here you can drag out the payments nearly forever. seen that one done many a time so who wins
lol
I'm no lawyer... nut I play one on the internet. IMHO.....
If he knew you are not a licensed contractor then he hired you as an employee. No mater what you have in writting a contract is a meeting of the minds .... which you did not have. In the state of MD only a licensed contractor can enter into a contract for home improvements which makes it kind of sticky because, without a license it's not viewed as a valid contract.
Get a lawyer and go the employee route. Since he has paid you over $600.00 your out of the casual labor catagory and he's on the hook for all kinds of employer legal BS, including with holding taxes, SS.... posting all kinds of neat signs .... providing you msds sheets on hazardous materials.... and the list goes on. Everyone he didn't do carries a neat little dollar value with it.
As for the tax thing I once sold a $20,000 circular stair to a guy doing the same thing. When the state of MD audited me, he stood out like a sore thumb. The auditor got on the phone and from what I understood one of his auditor buddies was at my customers business the next day. Even if you leave this one alone he'll probably get caught if the purchases are big, but it'll take a couple of years.
The way I see it you have money coming .... get a lawyer.
Good morning.
My question is why did you represent yourself as a contractor without having the necessary licenses in place?
rg
"My question is why did you represent yourself as a contractor without having the necessary licenses in place?"Please be aware. I informed the HO many times I can sign no contract, I'm not a contractor, I can only work hourly. I signed no contract. We came to no agreement based on any "contract".I answered an ad in the paper for "finish carpenter wanted". I had no intention of ever acting as a contractor and any "contracts" were mearly the job out lined in terms of time and current pay scale. The HO initiated EVERY bid based proposal to which I said "I can't sign a contract". All I ever did was give time tables but not once said " I will do this for this much in this amount of time" and absolutly signed no paper. We were always under ths OB agreement which the HO violated. Upon review, we never once used the term "deposit". It was always "advance for tools and materials". My mis wording....shoot....STJ
You sound like you are a bonafide employee.
Demand a W2
blueJust because you can, doesn't mean you should!
Warning! Be cautious when taking any framing advice from me. There are some in here who think I'm a hackmeister...they might be right! Of course, they might be wrong too!
"I answered an ad in the paper for "finish carpenter wanted". "If you don't have it go to the newspaper and get a copy of that ad.If I am not mistaken INTENT has a lot to do with the outcome in cases like this.That ad will clearly show what he orginally asked for and what you where responding to.Now your "story" has changed drastically from the initial post.By 'story" I don't mean to imply that you are making anything up. Rather that this your narative of what happened.How you explain it is critical.That is why I also recommend that you visit with an attorney to learn the fine points and how to present your case.
If you can produce a copy of that help wanted ad from the paper in court, it will go a long ways to certifying your position as an employee and making him look like a fool
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In the state of Minneosta, and I am sure in many other states, there are specific definitions of just what a "contractor" is. When I first started, I did everything, all trades, without a contract, trusting that I would get paid. Then the day came when I did some work for a guy that was a referral, and the poop hit the fan.
Since I was completing work that encompassed more than one of the eight categories that MN defines as specialty labor, I was technically presenting myself as a "general contractor". For example: I could hang drywall, but legally I could not tape it and paint it. I could frame a doorway, but could not legally hang the beautiful door I just prefinished. I could not install the trim, because that was another "specialty" trade.
What it comes down to for me, is that if a guy has to be aware that if he is going to do the work of a GC, he must be legally able to do so. If he does not legally fit the description of the work he is being paid to do, he will have no recourse if there is a dispute over money, completion time, or warranty issues.
There are alot of guys who will work without a contract, without a license, without the common sense that the state has a system that makes their professional intentions legal. This system also protects them in the case of jerk homeowners who will hire them knowing that they will be standing on one leg when the h/o refuses to make the final payment.
I feel for you. I pray that you find a way to handle this that does not negatively affect you and your family.
Good Luck rg
If he set up a phony business, call the IRS. You can do an anonymous "whistle blow" and they'll check him out.
I am a lawyer in NY, not licensed in CA. You should consult a California lawyer. My question for that lawyer would be: how could you have violated the licensing laws by contracting to build something for which there was no building permit and therefore could not be (legally) built? If there was nothing that could be built, how can you have contracted to build it? How can the owner come to court claiming the protection of an illegal agreement?
uhhhhhh....just out of curiosity......legal contract yet no contractors liscense?
One other dumb question.....you insured?
You say nothing is in writing?
I think you should go work for a real contractor and learn how its done unless I'm missing something here.
I'm an owner builder and would never sign anything with you because you sound like you're out of left field avoiding all the necessitates all us "legal" contractors have to go through.......you kidding me????
Am I missing something? If I am I apologize.
Be better advised
a...
The secret of Zen in two words is, "Not always so"!
When we meet, we say, Namaste'..it means..
"uhhhhhh....just out of curiosity......legal contract yet no contractors liscense?"I understand your confusion. I guess I got swept up in all possibilities and searched for anything in our dealing that could remotley be considered a contract.Once again..I'm NOT a contractor and don't pretend to be one. I made it clear each day I work for him on an employee basis.I answered an ad in the newspaper "Finish Carpenter wanted". I went to a job interview he asked what I'd like to be paid and I said "$20 an hour which is $160 a day" I said for that rate I expect to be paid for 8 hours no matter what and it will be in his best interest to be prepared for me. I usually get closer to $30 but haven't works been a bit dry lately. He said he wanted to start right away. I asked for legal papers and he couldn't find them, lost his pen, whatever. I asked several times but figured he'd get them. Here we are Friday and I can take an $800 check or refuse it because I haven't filled out papers. What would you do..seriously? The next week I worked off site gathering materials, making samples, drawing plans and next meeting he gave me another check and still no papers. After those 2 weeks he was panicing because he wasn't getting it together he asked what it would cost to "do the whole thing". I wrote up estimates of time, and materials and what at $20 he could resonably expect to pay for the complete job. I suspended any pay at that point but said I'll keep the $450 if he cancels the job. He said "I don't like that" I said take it or leave it. He took it. Now he wants the $450.I guess it sounds like my "story" is changing as of course there is a long story involved. I'm trying to show it in the worst light for me.I really want to make it clear to all you contractors out there I in no way shape or form have ever contracted. I made it perfectly clear on many occations I'm not a contractor and of course signed no contract.Thanks for all the help. I'm learning how to present this in case it goes to the next level.STJ
"I went to a job interview he asked what I'd like to be paid and I said "$20 an hour which is $160 a day" I said for that rate I expect to be paid for 8 hours no matter what and it will be in his best interest to be prepared for me. I usually get closer to $30 but haven't works been a bit dry lately""I made it perfectly clear on many occations I'm not a contractor and of course signed no contract."STJ,Then, What are you?What do you do for a living?You charged him 20.00/hr and usually get 30.00/hr but works been dry lately. What work has been dry lately? I haven't read all the posts you've made but you keep saying your not a contractor, so what are you? Is this a side job that you do? Are you a Carpenter? A Trim Carpenter or you just don't want to be called a Contractor?What do you do for a Living?Joe Carola
Joe,I am a carpenter who prefers to do finish work.I've worked in all phases of construction but as I said I'm concentrating on finish since it's a bit harder for me to keep up with the young uns on the framing crews around here. I'm 45.I work 2-3 weeks a month with a GC who is having health problems and not able to take on larger jobs. The smaller ones are not fitting or qualifications or the HOs. 8 weeks of waiting for him have left me needing work and money.I was answering ads for a "finish carpenter" I did not solicit any work or make any contracts.The HO kept trying to corner me into a "time and budget" contract but I explained each and every time I can't sign a contract and must be paid by the week. I made attempts to harness the project to time and money but never once suggested we sign contracts and in fact informed the HO of it being illeagal for me to do so.Sorry that any GCs got the impression I'm trying to dodge the system.STJIt's starting to get clear......
SJT,
Well, I think you're wrong on what constitutes a contractor in California. If you:
--perform construction or building repair work for money, and
--the value of the job is over $500, and
--you are not an employee; THEN,
you are a contractor, and have to be licensed.
It has nothing to do with whether there is a written contract for the work.
Your insistence that the work be done on a T&M basis just means that you're not contracting for a fixed bid price.
I think it's interesting that you worked for two weeks and got paid without having any employment papers (I therefore assume that you didn't provide an SSN, address, etc). I'm not all that sympathetic towards people who don't pay income taxes, SSI,and workers comp (even as an employee, you pay workers comp, it's part of your total compensation--your employer pays it for you).
I hope it works out for you, I think this guy is is a worse position than you.
Cliff
Cliff, the burden of proper documentation falls on the employer's shoulders.
blueJust because you can, doesn't mean you should!
Warning! Be cautious when taking any framing advice from me. There are some in here who think I'm a hackmeister...they might be right! Of course, they might be wrong too!
Blue,
Roger that, no question.
But my point was, if SJT works for two weeks and is paid and hasn't "signed any papers", I'm thinking that he knows that it's under the table (no taxes or WC being withheld).
And the person paying SJT could claim that SJT was doing the work on a contract basis, 'cuz there's no employment agreement.
regards,
Cliff
Regarding papers...He would get cagy when approached about that. I'd ask about withholding as the check was for the fully bargained price. The he'd not be able to find a pen etc...Obviously wanting to keep it under the table upon reflection. All I could do is request or not work. I requested on both pay check occations the last time had me suspicious and we parted ways soon after that.Part of me just wants out part of me is saying take this guy down with any means possible as he's on the hunt for another victim, and this poor guy might not even have my small amount of savy and sign a paper.Did I mention it's an $8Million house!!! And he has a $6000 budget for the kitchen???!!! Really!!Poor guy...STJ
No need to feel vengeful and "take him down"Just expose the facts as you know them to all the appropriate agencies and let the chips fall. He can take himself down
Welcome to the Taunton University of Knowledge FHB Campus at Breaktime. where ... Excellence is its own reward!
One other thought. You may well have lien rights on this property. (Of course, check with an atty.) This would be unrelated to any licensing/employment issues. You could explain that removing the cloud on the title could end up costing him more than just paying you off.
Except for a few things, you have a real simple story;
You answered a help wanted ad in the paper. The guy hired you for $800/week salary.
NOT $20 an hour, 'cuz you said 40 hrs/ week, worked or not. Your bad. I dunno what that would say to a judge.
You worked for two weeks, then quit, and, he paid you for that time.
Except you did NOT work for 80 hours at $20/hr. I dunno what that would say to a judge.
He also gave you some money to buy materials and tools for the job.
You kept $450 of that money when you quit.
You betcha, I know what de judge gonna say to that.
What really happened? The whole story in one post. Just start at the beginning and type till you get to the end.
As Seargent J. Friday would say, "Just the facts, sir, just the facts."
SamT
I think that this happened during the 3rd week, but it is realy not clear.
OK SamTOne more try.
I answered an ad in the local newspaper for a finish carpenter. I said clearly. "I'm not a contractor". He said what pay are you looking for? My response was I have worked for $18-$35 Hr depending upon the work. He immeadiatly offered me $800 a week. I said that's low but if promise to keep me busy and pay wether I put in 40 hours or not we have a deal. I asked about taxes etc.. and he said he would run it through his software company. With the clock running I started the groundwork and worked over 40 hours week 1 and mid week 2 due to his indecision and design changes I said if you want to give me some days off towards the job in week 3 ,we can, but if the job falls through you have to pay me for my time. I said I'll spend the rest of week 2 designing the kitchen and did and was paid for 40 hours work.I was paid twice each time the full $800. I asked about with holding taxes etc.. he said he'll bring the paper work lost my pen etc.. he never did. I signed nothing.Week 3 saw me out there 2 days and one day on the road shopping for hardware.I made it clear day 1; If I'm sitting at his house with him drinking coffee explaining Blum hinges I get paid. When it was obvious week 3 was spiraling out of control, my suggestion was I will spend the time pricing and adjucting plans/designs so it will fit in his budget. When I present you with these numbers and plans I expect to be paid for them or have an agreement. The "agreement" was a simple time line. I figured 6-8 weeks at $800 a week and gave him a figure. He said at this point he will only pay as work is completed. So at that point he took me off the clock. He challenged me to make an entire kitchen of cabinets in 5 weeks for $5000. I said it can't be done by me, and reminded him I'M NOT A CONTRACTOR I CAN'T SIGN A CONTRACT. The pay would have to remain as we agreed. Obviously one man working in a small garage can not make 50 linear feet of furniture quality Craftsman inspired cabinets in 5 weeks. I said 10-12 weeks and made detailed dailies of how I expected the work to flow and when he could expect certain piece to arrive and be installed. A rough estimate of what it would cost him on my hourly pay gave a vague price which I also said I can't promise as I work hourly/daily/weekly.He was always employer, no question. I never signed a contract. He on several occations tried to get me into bid circumstanses and the best I could do was meet a certain time frame and if not I would work at reduced price 60% pay till job done. His bottom line was always flexible as I never gave him a firm quote only time and rate.He tried several times to pin me down to a firm number and while I got more specific I never presented a bottom line nor said I'm not an employee He countered with offering me $6000 for the entire job to be completed in 7 weeks. My response was I don't want to leave you hanging with 1/2 a kitchen. If the job takes 12 weeks I need to be paid for ALL my time. Once again a contract signed by me is null and void as I'm not a contractor.At this point I bowed out saying I won't charge him for the final week as agreed ( I put in over 40 hours, mostly design and researching prices of materials) and only keep the $450 tool advance, at which point he began threatening legal action.He said specifically he'd report me for operating without a GC license. Lots of confusion is due to the fact they kept changing designs. At least 6 times there were significant changes that had me starting from scratch.I guess my question is : Who has the burdon of proof? Nothing is signed, some scraps of paper and emails have estimates but nothing close to a contract. I also never got the W2's etc.. for taxes, he avoided this everytime. I just want to make sure I don't have to deal with this on a legal level. The more I llokm at it, he's not got a snowballs chance, but some here figure i can be in for a fight.So....Thanks,STJ
In this particular small claims case, he is making the claim so he has the burden of proof. His claim is that you_________________?Analyse what he would need to prove to the judge. Which facts disprove that claim. Keep it short and sweet.Judge, he hired me at 800 a week.
I worked two and a half weeks.
He paid me for two and a half weeks.I'm curious - he paid for tools in advance? Who has the tools?
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He has tools and very single nail I bought for the job.Thanks everyone. We're getting circular now and it's just gets more complicated top present it so many ways.Bottom line.I hope..I signed no contract. I advised HO every time I could not contract work, only hourly which became a weekly salary. He said as I now recall he'd run the whole thing through his software business. Nothing signed.I'm owed 2 1/2 weeks work, or 3 weeks salary. I don't think his wealth should be a point which is why I tossed 1/2 back due to mis understanding. He wants to pay me nothing.I'm actually happy with that as long as it doesn't become a legal battle.I get the distinct impression he has a lawyer on retainer who he bullies about and can force him to do what ever despite the ultimate harm to him.My warning to him since it got this way: If ya aint got nothin' ya got nothing to loose. I own no prooerty. Books and tools and a dog.Oh yea this computer too<G>I'll let ya know how it comes out. If the week end brought him to his senses.Thanks again for helping me stay grounded and basically arguing for myself in fron of all you. Great questions and advice all around.STJ
Like I said, practice makes perfect
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"We're getting circular now and it's just gets more complicated top present it so many ways."
If this seems circular to you, wait until you're being cross-examined under oath...
Unless you have the clearest possible understanding of your situation, and the many ways it could be presented in court, you will be chewed up and spat out. Figuratively speaking that is.
Like you said, staying grounded is crucial. You gotta know your ground. But you must also be prepared to deal with what lies in any number of directions away from your ground. This is what a good attorney can do with you. Arguing with us is a good start, but you should still see a professional litigator, asap.
I hope Easter brings this rich man to his senses.
You mentioned having books, tools, your dog and your 'puter. You seem to be honest, you use your brains, and you can stand up for yourself. That makes you a rich man too. You also have BT friends. Stay in touch.
I signed no contract.
That depends. My understanding of Texas law (as a layman only) is that a contract exists anytime a person agrees to perfom work (or create some gain or benefit) for another for "consideration." Present law defines "consideration" as at least ten dollars and any other such considerations. So, in that definition, you agreed to provide a benefit or service for a defined consideration, at least in Texas, to the best of my information, understanding and/or belief.
Therefore a contract may exist, if California law so provides, even if you are not a contractor, nor signed a paper contract. You need a labor and construction-experienced attorney sooner not later.
Now, in Texas, if I understand your description right (and qualified that I am not an attorney), you had a "trade contract for service" with the owner. Now, for that to not be an employer-employee relationship, in Texas at least, you would have to be qualified by the State to be an employer yourself (which would make you a contractor, even if only in limited sense, and you'd get an end-of-year 1099). Otherwise, you are an employee. Now, Texas has a number of qualifications to meet to be an employer. They are not complicated, but they do exist.
If California has similar requirements (I suspect it does, and much more stringent, too), then you may have "leverage" in that you may have been an employee of someone who is inelligible by state law to be an employer.
Having been to SC court, I can tell you for sure and for real, you must stop using the phrase "I did not sign a contract; I am not a contractor." Because, if state law says that you did, and you were, it will not matter to the judge that you did not think that you were. The judge gets to determine what is a fact, if you state something that the judge has already ruled is not a fact--per the legal definition--then you can irritate the judge. This will not help your case at all.Occupational hazard of my occupation not being around (sorry Bubba)
STJ,
I'm not trying to give you a hard time just 'cuz that's my temperment. I was sue'd by a corp in Ca. I went Pro Se and won. Helped a friend prepare for court against another person. Judge looked at each parties table where all the prep work (papers) were sitting. Won again.
I ain't no Lawyer. I ain't no Lawyer. I ain't no Lawyer. I ain't no Lawyer.
Getting your story linear and concise and absolutely true and factual is the only way to win in any Pro Se situation, which small claims is.
What date did you see the ad?______________
What date did you phone Mr. AH? ________________
What date and time did you first meet with Mr. AH?______________
Did you tell Mr. AH that you were not a contractor and had to be his employee at that time?________________
What did Mr. AH say was his regular means of income? (His Day Job?)__________
What was the rate of pay agreed on by you and Mr. AH?__________
How many hours did you work the first week?_____________
The second week?_______________
The third week?________________
Do you have any notes indicating these hours?____________
What is the Gross Pay Mr. AH gave you for the first week?____________What date?_____________ Check #?________
The second week?___________What date?_____________Check #?________
The third?____________ NOTE: the $450 he did not want you to keep DOES NOT COUNT.What Date?____________Check #?________
Did Mr AH hand you any other monies?_______
For each instance:
When?_____ How much?________For what purpose?_________Did you fulfill the purpose?____________What happened to the reciepts?______ What happened to any monies not spent?_________
When?_____ How much?________For what purpose?_________Did you fulfill the purpose?____________What happened to the reciepts?______ What happened to any monies not spent?_________
When?_____ How much?________For what purpose?_________Did you fulfill the purpose?____________What happened to the reciepts?______ What happened to any monies not spent?_________
Did Mr. AH withhold any deductions from your pay?
If you go to court, here's what I imagine the judge will say;
Mr STJ, you worked 45hrs the first week, 40 hours the second, and 24 the third. Mr AH owes you $2180 minus the $1600 he has already paid, or $580. You, on the other hand,defrauded him out of $450. As punishment for the defrauding, I am not going to award you the $580, but you can keep the $450. Mr. AH must pay all deductions, IRS, SS, UI, WC, Etc.
If it were me, and I try to be impeccable in my financial and legal dealings, I would send the $450 back with a note saying my consience would not let me steal even when it was justified, I would also inform him of my intent to file a claim with the labor board for the $580 (or whatever you #s are.)
Then I would call the IRS pleading for help because my last employer didn't withhold. Same for SS and WC.
Finally, just for the icing on the cake, I would file an unemployment claim on him claiming that he fired me 'cuz I wouldn't work under the table.
If I did that, here's what I would expect to happen; The IRS will audit him, all my withholdings will be paid by him and I get to keep the full gross pay I've received. WC will audit him and fine him. EDD (unemployment office) will audit him and pay me UI. The labor board will audit him and in about 6 months, I will get a check for the OT I worked the first week. He will get royally screwed.
I would also have a folder with every scrap of paper involved in this mess, including any duplicate receipts the places where I bought his stuff could provide me. I would have a "Timeline" sheet laid out like the Q's above.
SamT
Wow!Where do I send the bill !!!??I know I sound all over the map. Remember I started the thread with "Briefley..."It is important to be consistant and keep to the facts and which matter and which don't.I've begun documenting everything as memory will fade more if a court date is made.I heard from th HO this morning and he said he has all the WC and 1099's w2s etc..Obviously he wised up and decided to run it through his "business". Of course he has no SS# from me or any other info so he'll have to produce documents for me to sign at some point.Thanks again,STJ
E-mail it to me.
SamT
I agree SamT.
I'm always surprised when I hear horror stories about employees getting 1099's and ending up with substantial tax problems because they didn't file quartelies and tax and interest and penalties are assessed. I've advised several to seek relief using the State labor board, but they all just listen, then go about their business as if I'm crazy.
The labor laws are clearly on the side of the worker. It's not even a close decision, most of the time. The worker has the state on their side arguing the case. I know, I've gotten my wages out of two employers that thought they could play the "not pay" game with me.
It took two years but one of them payed up the same day they were hauled in on the bench warrant, I think.
blue
Just because you can, doesn't mean you should!
Warning! Be cautious when taking any framing advice from me. There are some in here who think I'm a hackmeister...they might be right! Of course, they might be wrong too!
Edited 3/29/2005 1:15 am ET by blue_eyed_devil
I think I like the way you think
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Cap, again I disagree.
When the employee receives his cash, in the form of cash, it represents the net take-home amount. I got paid this way at my first job at 31 Flavors when I was 15. It means the employer has already withheld properly. The employer also is lawfully required to give a witholding statement. But, it is not up to the employee to know the laws and demand one, if the employer doesn't supply one.
As we all know, the employer bears the burden of the responsibility. It has been made clear, over and over that this was an hourly employer/employee relationship and the employer also agreed to get the belated papework done.
The labor laws favor employees.
blue
Just because you can, doesn't mean you should!
Warning! Be cautious when taking any framing advice from me. There are some in here who think I'm a hackmeister...they might be right! Of course, they might be wrong too!
blue,I see your point, and stand corrected.Cliff
Listen bro......Insurance will probably cost you in the hood of $1500 a year//the lisence probablay cpl a hundred bucks every few years and an easy written rest.
Do it! Then charge what ever you want because you'll end up in court and it'll cost "you" a whole lot more in spite of what an A-hole this guy is.
For less than two grand you're legal and reputable....just do it!
Be safe
a...The secret of Zen in two words is, "Not always so"!
When we meet, we say, Namaste'..it means..
I honor the place in you where the entire universe resides,
I honor the place in you of love, of light, of truth, of peace.
I honor the place within you where if you are in that place in you
and I am in that place in me, there is only one of us.
Andy, I've heard -0 don't know for sure, but heard several times - thqat insurance is quite a bit more expensive on the west coast there.
Welcome to the Taunton University of Knowledge FHB Campus at Breaktime. where ... Excellence is its own reward!
From this post I gather that:1. You worked for 2 weeks and got paid for 2 weeks labor.2. The HO gave you $450 in addition to the $1,600 mentioned in #1.3. The $450 was for materials and tools.4. As you stated in a previous post, the monies for tools were considered an "advance.""I suspended any pay at that point but said I'll keep the $450 if he cancels the job." Did you suspend work?Do you have reciepts totaling $450 for materials and tools? Does he have the materials and/ or tools? IMO - You owe him the dif in monies spent on materials and the $450 he gave you for them + the materials minus what he owes you for work preformed beyond the 80 hrs. He does not owe you any kind of severance pay. Do the right thing and get this guy out of your hair. He is an amature and you are beginning to act like one.F
"He flipped out and is initiating all kinds of legal trouble for me. Small claims over the deposit , $450. Threatening to have me fined for operating with out a contractors license."
Please define "initiating all kinds of legal trouble," especially the initiating part. Is it all talk or have you been formally served?
I understand thejitters and anticipitory actions on your part, but your road to plow will become evident from his formal legal actions. If he is just blowing smoke, no worries.
Before most people go the legal route they contact a lawyer and assess what they have to loose compared to what they have to gain. Hopefully he will do this. Whatever you do, don't tip your hand regarding what actions you can take.
F
I agree with the blowing smoke part. Odds are it's a bluff. Ya really think he wants to show all his warts in court?Of course, it's not my situation, so it's easy for me to say he's bluffing.
I am in CA, and while you should certainly be talking to an attorney, from your description, it sounds pretty clear that the intent was to have an employer/employee relationship, even if short-term. If so, he may have much more to lose than you. He was legallly required to have workers compensation insurance. Did he? Then there are all of the tax withholding issues which can get pretty serious. Then there is the permit issue, which as owner-builder he will be responsible for.
He is in a very poor negotiating position, and it would be advisable to run past an attorney the specifics, but there's a good chance you have far more leverage on him than he has on you.
Edited 3/27/2005 3:50 pm ET by Richard
Edited 3/27/2005 3:57 pm ET by Richard
I agree Richard. I'd rather take this "employees" side.
blueJust because you can, doesn't mean you should!
Warning! Be cautious when taking any framing advice from me. There are some in here who think I'm a hackmeister...they might be right! Of course, they might be wrong too!
As this guys case begins to look stronger and stronger, I would think that ifg he contacted an atty, one good phone call from said atty could convince this HO to withdraw from his small claims case or just not show up in court that day
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8 million dollar house? dispute over 2 G's? This guys not gonna persue nothin. He thinks you are easily intimidated. I would tell him to go screw!
Let him know you know about his legal indescretions, then forget about him. Make damn sure you claim the 2 grand at tax time.
get it in writing first and foremost! you said you had problems before you actually started.you stay in this business long enough you can ''smell'' the bad ones comming!!!