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ex helper filed a labor board complaint.. California

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  • ex helper filed a labor board complaint.. California

    im a contractor in california, i have a sole prop business and i do most of the work myself, if its too much i generally hire subs. i used to have a helper that would use pretty regularly, he came and went as he pleased and i paid what he asked, nothing was ever in contract and he used all of my tools. one day he takes all my tools off the jobsite and goes MIA, about a week later he texts me saying he wants his paycheck, i tell him he can pick it up just bring all my tools back... he refuses and wants me to bring him cash and meet him in a parking lot, for obvious reasons i deny that request. a couple months pass and at this point im feeling it financially as im not able to work my own jobs without my tools, i lost thousands on the job i was working on because i had to pay another contractor to finish it. i file a police report against the guy but the DA says its a civil case. about a year passes at this point and i agree to pay him 2000 dollars for the return of all my tools, he left about 80 percent of the missing tools, some of which dont work anymore and all are in pretty rough shape, i gave him a check which i stopped payment on immediately. now he filed a complaint with the labor board for unpaid wages.. and damages to almost 10 thousand dollars.

    opinions anyone?


    BTW i never owed him 2000 dollars, that was the amount he was demanding
    Last edited by reaglebeagle04; 06-24-2016, 11:40 PM.

  • #2
    Sounds like you may have misclassified him as an independent contractor when you should have classified him as an employee, i.e., paid him via payroll with proper deductions and in compliance with CA labour laws.

    The CA DLSE is going to want to know whether or not you paid him at least minimum wage for all the hours he worked, and time-and-a-half pay for every hour worked in excess of eight in any day and 40 in any week. If you don't know whether or not you did this, or you think you did this but can't prove it, the DLSE will base its decision on what the employee says.

    Regarding the penalties, I can't say. Depends on what happens with the wage claim.

    Comment


    • #3
      Originally posted by eerelations View Post
      Sounds like you may have misclassified him as an independent contractor when you should have classified him as an employee, i.e., paid him via payroll with proper deductions and in compliance with CA labour laws.

      The CA DLSE is going to want to know whether or not you paid him at least minimum wage for all the hours he worked, and time-and-a-half pay for every hour worked in excess of eight in any day and 40 in any week. If you don't know whether or not you did this, or you think you did this but can't prove it, the DLSE will base its decision on what the employee says.

      Regarding the penalties, I can't say. Depends on what happens with the wage claim.
      so even tho he stole my tools and disappeared im still in the wrong? when he did work for me he made well over minimum wage...

      doesnt he have to prove what hes saying?
      Last edited by reaglebeagle04; 06-25-2016, 08:37 AM.

      Comment


      • #4
        The DLSE is not interested in the tools. If you have evidence that he didn't return all of the tools, and that he damaged the tools he did return, then you are free to sue him in civil court. The DLSE will not listen to any talk about tools.

        Regarding the burden of proof, if your opinion of what days and hours this employee worked and was paid for differs from the employee's, the DLSE is going to demand your payroll records to back up your opinion. If you cannot provide such records, the DLSE will have no choice but to go with what your former employee claims.

        And keep in mind, even if you were paying this person more than minimum wage per hour worked, you are still required to pay him OT pay at the rate of one and one half times whatever hourly rate you were paying him for every hour above eight worked in a day and every hour worked above 40 in a week. If you didn't pay him this, you will be on the hook for this.

        Finally, stop shooting the messenger. I don't make the laws, I just explain them to people. If you don't like California's labour laws, your recourse is to contact your state representative to ask if said laws can be changed in your favour.

        Comment


        • #5
          Originally posted by eerelations View Post
          The DLSE is not interested in the tools. If you have evidence that he didn't return all of the tools, and that he damaged the tools he did return, then you are free to sue him in civil court. The DLSE will not listen to any talk about tools.

          Regarding the burden of proof, if your opinion of what days and hours this employee worked and was paid for differs from the employee's, the DLSE is going to demand your payroll records to back up your opinion. If you cannot provide such records, the DLSE will have no choice but to go with what your former employee claims.

          And keep in mind, even if you were paying this person more than minimum wage per hour worked, you are still required to pay him OT pay at the rate of one and one half times whatever hourly rate you were paying him for every hour above eight worked in a day and every hour worked above 40 in a week. If you didn't pay him this, you will be on the hook for this.

          Finally, stop shooting the messenger. I don't make the laws, I just explain them to people. If you don't like California's labour laws, your recourse is to contact your state representative to ask if said laws can be changed in your favour.
          not trying to shoot the messenger, just trying to get a grip on this and understand how it works. i think the tools play an important role in this, the reason being is that when he took off, he took thousands in tools with him and made it impossible for me to give him pay for the last few days he worked. he wouldnt give me his address, or bank info to deposit the money... according to the labor law, doesnt this disqualify him for any damages? i also have texts from him claiming that he did in fact have my tools, and wanted much more than his paycheck, in cash, and for me to meet him in a parking lot, otherwise he was keeping the tools. to me, it sounds like he took the tools, purposefully avoided being paid until he either needed more cash, or i paid him what he wanted for the return of my tools. would the labor board care about this at all?

          Comment


          • #6
            Originally posted by reaglebeagle04 View Post
            not trying to shoot the messenger, just trying to get a grip on this and understand how it works. i think the tools play an important role in this, the reason being is that when he took off, he took thousands in tools with him and made it impossible for me to give him pay for the last few days he worked. he wouldnt give me his address, or bank info to deposit the money... according to the labor law, doesnt this disqualify him for any damages? i also have texts from him claiming that he did in fact have my tools, and wanted much more than his paycheck, in cash, and for me to meet him in a parking lot, otherwise he was keeping the tools. to me, it sounds like he took the tools, purposefully avoided being paid until he either needed more cash, or i paid him what he wanted for the return of my tools. would the labor board care about this at all?
            Labour law says nothing about employer property matters. And if there's nothing written in labour law about it, the agencies (such as the DLSE) that enforce said labour law aren't legally allowed to address employer property matters. The only possible thing the DLSE is legally able to say about the tools is that it was illegal for you to withhold his pay in return for the tools.

            So if you're dead set on bringing up the tools, that's OK, just be forewarned that it might cost you in penalties.

            The only way you can get redress for the tools is through civil court.

            Regarding the wage claim, you can beat this as long as you can provide proof that you paid this person at least minimum wage for every hour he worked for you, plus OT pay if applicable. If you don't have such proof, then the case rests entirely on what this person has to say to the DLSE and how believable he is.
            Last edited by eerelations; 06-25-2016, 10:54 AM.

            Comment


            • #7
              Originally posted by eerelations View Post
              Labour law says nothing about employer property matters. And if there's nothing written in labour law about it, the agencies (such as the DLSE) that enforce said labour law aren't legally allowed to address employer property matters. The only possible thing the DLSE is legally able to say about the tools is that it was illegal for you to withhold his pay in return for the tools.

              So if you're dead set on bringing up the tools, that's OK, just be forewarned that it might cost you in penalties.

              The only way you can get redress for the tools is through civil court.

              Regarding the wage claim, you can beat this as long as you can provide proof that you paid this person at least minimum wage for every hour he worked for you, plus OT pay if applicable. If you don't have such proof, then the case rests entirely on what this person has to say to the DLSE and how believable he is.
              if i can prove that he avoided collecting a check, and what he was requesting from me contradicts what he told the labor board. where does that leave me?

              Comment


              • #8
                If you can prove that he made it impossible for you to pay him in a timely fashion, then you'll probably be forgiven penalties for late payment of wages. (Don't forget though, he may have been making it impossible because you were saying you wouldn't pay him until he returned your tools. As I said before, him being in possession of your tools is not a legally valid excuse for paying his wages late.)

                Regarding what he asked for before and what he's asking for now, the DLSE is only interested in ensuring he's paid what he's legally entitled to. If they determine that he's legally entitled to more than what he asked for before, they will increase the amount to be paid to the "more" amount they've decided on.

                Comment


                • #9
                  Originally posted by eerelations View Post
                  If you can prove that he made it impossible for you to pay him in a timely fashion, then you'll probably be forgiven penalties for late payment of wages. (Don't forget though, he may have been making it impossible because you were saying you wouldn't pay him until he returned your tools. As I said before, him being in possession of your tools is not a legally valid excuse for paying his wages late.)

                  Regarding what he asked for before and what he's asking for now, the DLSE is only interested in ensuring he's paid what he's legally entitled to. If they determine that he's legally entitled to more than what he asked for before, they will increase the amount to be paid to the "more" amount they've decided on.
                  does the dlse require him to prove he actually worked? or do they just take his word for it and the burden of proof is up to me

                  Comment


                  • #10
                    The DLSE expects employers to keep better records than employees. (I worked for a company for six years recently...do I have records of me working there every single workday of those six years? No...but that company sure does.)

                    The DLSE will hear him say "I worked for reaglebeagle04 on all these dates for all these hours." Then the DLSE will hear you say "No, that's incorrect, he only worked for me on these dates and these hours." The DLSE will then ask you "Can you prove this?" And if you say "no" then the DLSE will ask him if he can prove what he's saying. Because the burden of proof is somewhat less for him (see my bracketed statement above), if he can't actually prove it, they will then listen to his story to see how believable he is. They will also ask you if you have any proof that refutes any or all of his story. If you don't and his story is believable, the DLSE will have no choice but to rule in his favour.

                    You know, if you'd just complied with labour law from the beginning (kept records, paid him according to regulations, withheld appropriate taxes, kept the tools and wages issues separate, etc.), you wouldn't be in this position. He could still file a wage claim, but he would lose.

                    Comment


                    • #11
                      Originally posted by reaglebeagle04 View Post
                      does the dlse require him to prove he actually worked? or do they just take his word for it and the burden of proof is up to me
                      California, and indeed most states (I can only think of one exception) will assume he is telling the truth unless you provide records to the contrary. And from my personal experience in California, they will not be easily convinced even if you do provide records to the contrary.

                      It may not be fair, but the fact of the matter is, he doesn't have to prove diddly squat. The state will take his word for what he worked and you will have to prove otherwise.
                      The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

                      Comment


                      • #12
                        The answer to not having an address to pay him would have been to send a check for his hours to his last know address. If you never had an address, then the fault is with you.

                        It is the clean hands theory. Courts prefer to have people follow the law and then only deal with the problem areas. When both sides come in with unclean hands, then it neither side has a clear advantage.

                        Comment


                        • #13
                          Two wrongs do not make a right. You failed to pay him as an employee, cover him for WC, pay taxes as his employer, and probably a bunch of other things in violation of the law. If you had paid taxes, had him complete an I-9, or anything else, you would have had an address. It is never ok to hold a check until the employee returns company property. Those are separate issues.

                          While he can not keep your tools, you do have a remedy through the courts. For reasons unknown you have not pursued this.
                          I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

                          Comment


                          • #14
                            The "i tell him he can pick it up just bring all my tools back... he refuses and wants me to bring him cash and meet him in a parking lot" struck me as familiar from the get-go, does this sound familiar to anyone else here? I'm convinced I read this issue somewhere else on this board by a different username...

                            Comment


                            • #15
                              They all start to sound alike to me after a while anyway.

                              However, ONLY in South Dakota does an employer have legal protection if he refuses to release the final pay until all company property is released. In all other states, if the employee does not return all company property, sue him; that's what the courts are for. But that does not excuse the employer from releasing all pay that is due. And, in states that require it (California does) any earned but unused vacation as well.

                              And believe you me, CA WILL take his word for it and make you prove otherwise. A CA employee once claimed that we'd not paid her out all her vacation pay. We had, and we had the records to prove it. But even after we submitted all the records, calculations, payroll transmission records and pay stubs, they still demanded that we pay her what we "owed" her until the employee acknowledged that we had, in fact, paid her everything she was owed. Even after that, they took something of a, "well, you got away with it this time but don't let it happen again" attitude. Don't for a minute think that CA will believe you over him without very convincing evidence.
                              The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

                              Comment

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