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Demonstrator replaces herself with someone else. California

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  • Demonstrator replaces herself with someone else. California

    I have a small product demonstration agency. We hire demonstrators to go to different grocery stores to promote our client's products. One of them is constantly sending her husband, cousin or somebody else to do the job for her. She sends all the paperwork for payment with her name. This is getting us in trouble with our clients because the person actually attending the promotion is not qualified or is not spending the six hours.

    I'm assuming I still have to pay her even if we have copy of the security cameras showing her husband doing the promotion. Is there any legal action/term to protect my company and clients from this kind of fraud?

    I feel like we always end up being responsible for paying work wrongly done and still clients are not completely happy even if we pay someone else to do a good job.

  • #2
    Is she an independent contractor, or an employee? If the former, does her contract say this is prohibited?
    I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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    • #3
      Patty can correct me if I'm wrong, but it seems to me that if she is not doing the work, you do not have to pay her one penny. Pay would be owed to the person who actually did the work, but not to her.

      And barring a legally binding and enforceable contract that specifically allows her to send a substitute, there is indeed a legal action you can take to stop this. It's called firing her.
      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.

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      • #4
        Do you have a written agreement (contract)? If so how does it read? I ask this because I wonder are you hiring this woman or her compnay (so to speak) meaning she may send anyone and she pays those person(s) and you pay her. I will say if your paying for 6 hours and not getting six hours work then you should only pay for hours worked again depending on how contract reads
        http://www.parentnook.com/forum/

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        • #5
          We need to have the answers to my questions from the OP.
          I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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          • #6
            Originally posted by Ca-Latina View Post
            I have a small product demonstration agency. We hire demonstrators to go to different grocery stores to promote our client's products. One of them is constantly sending her husband, cousin or somebody else to do the job for her. She sends all the paperwork for payment with her name. This is getting us in trouble with our clients because the person actually attending the promotion is not qualified or is not spending the six hours.

            I'm assuming I still have to pay her even if we have copy of the security cameras showing her husband doing the promotion. Is there any legal action/term to protect my company and clients from this kind of fraud?

            I feel like we always end up being responsible for paying work wrongly done and still clients are not completely happy even if we pay someone else to do a good job.
            So why haven't you gotten rid of her yet? It is completely unacceptable for her to have someone else do her job for her.

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            • #7
              Originally posted by Pattymd View Post
              Is she an independent contractor, or an employee? If the former, does her contract say this is prohibited?
              Agreed with the point Patty is making. ICs are supposedly independent businesses. The "customer" (ICs do not have employers) cannot legally on the one hand claim that the IC is an arm's length vendor (not an employee) and on the other hand try to use the same tight control that they would with an employee. It is perfectly legal (and common) for legitimate ICs to decide which personnel they use to complete the task their business has been given.

              Now, whether or not the worker really is an IC under statutory law no matter what their so-called "customer" claims is a different issue. But if the "customer" is going to play games to get around paying employer taxes, WC and other employer responsibilities, they also managed to legally created a door that swings both ways.

              -------

              Now if this worker is an employee, then agree with the other answers. You pay the person who actually works and you should fire employees who play these kind of games.

              The real question seems to be which party is the one playing games. Someone clearly is.
              "Reality is that which, when you stop believing in it, doesn't go away".
              Philip K. **** (1928-1982)

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              • #8
                Originally posted by Pattymd View Post
                Is she an independent contractor, or an employee? If the former, does her contract say this is prohibited?
                She is an Independent Contractor.

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                • #9
                  Ok, then does the contract say what she is doing is prohibited as Patty asked?
                  Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                  Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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                  • #10
                    I really appreciate all your answers. I understand that the clue is in the classification of the person as either IC or employee. In this case she is an IC because the work is really scarce and we call her once every two or three months, this last time we had work for her 3 weekends in a row. We have a signed written agreement but doesn't include this kind of situations.
                    Even after we told her we have a copy of the security cameras showing a gentleman doing the work, she still insists that she was there at the store. This is what is really bothering me. We agreed to fire her and pay for the work that was done by her substitute to be able to sleep at night.
                    Thank you!

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                    • #11
                      Her assignments being "scarce" doesn't automatically make her an IC. But since you've let her go, it's probably irrelevant now, although you might want to look into this further.

                      Just so you know, one of the indications of employee status is that the worker must perform the services himself. Generally speaking, an IC can hire someone else to do the job unless the contract prohibits it.
                      I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

                      Comment

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