former handyman filing a workers comp claim question HELP

[Rochelle Wilkinson]

a little background info here.. I inherited a 60 unit apartment complex..we had a bunch of problems that have since been fixed, I took over full management responsibilities, am loving my new role and moving forward. 

When I took over we had a full time handyman in place who was being paid $1,000 a week, had no real schedule and they did not carry workers comp on him. I spoke to him and told him we needed to put him on our payroll and take out taxes, and cover him under our workers comp. He didnt like the idea and said he would handle his own taxes at the end of the year. At that point they had him receiving paid holidays and  a weeks  vacation. 

however he pretty much operated like a sub contractor, we asked him to start work at 9 due to tenants sleeping and getting ready for work, he insisted he needed to work 7-3 because he had a second job at night and wanted to beat traffic. ok.. we had a couple problems with tenants complaining they would be woke up by him entering the apartment while they were still asleep and getting ready for work. I asked him to do things that didnt require him to go into any apartments before 9 am.. he did not comply.. then when we were getting ready to flip an apartment I sat down with him and asked him to make a list of materials with me he thought he would need so I would have all the materials on site when the apartment was vacant. we sat there, made a list and I said " ok great, how long do you think it will take to paint, put in new counters, and do any repairs needed?"  he told me " dont rush me I got a bad back and I need you to  bring all the paint, and tile up the stairs and leave it in the apartment I am not picking that stuff up"... I asked him what he did to his back he said he hurt it years ago and he had recently been working on a bunch of boats and tweeked his back last weekend at his other job.. ( which he freelanced cleaning and shrink wrapping boats on his own for private owners) .. I was stunned he asked me to bring up boxes of tile and 5 gallon buckets of paint.. I then told him if his back hurt and he cant do the work anymore maybe this isnt the job for him.. he told me he would be fine and worry about myself.. then I asked again how long he thought the apartment would take and told him I had someone wanting to sign a lease so it would need to be done in the next 2 weeks.. at that point he came over to me where I was sitting, grabbed the paper I had written all the materials on and crumbled it up and threw it at me and said " you dont give me deadlines and tell me when something needs to be done, I tell YOU when an apartment is ready and when you can lease it" and then he said " I'm tired of you micromanaging everything I do"  ( to say he was unhappy with me taking my new role as property manager serious would be an understatement).. I think he was more comfortable with his free reign that he had under the old lax management.. at that point I guess he thought he would " show me" and didnt show up to work for the next 5 days ( at which point I quickly called a REAL subcontractor and had him do the job , which he completed in 5 days, well before the 2 weeks he thought was a tight schedule).. and then I met him and gave him his last paycheck and told him we no longer needed his services.. so now here is my problem.. I got a voice mail message from Workers Comp telling me he has filed a claim against me.. ( he sued his last job too, found that out afterwards.. so my question.. he was not covered under workers comp.. he didnt follow our rules, he made his own hours, didnt follow any schedule, did what he wanted when he wanted.. but we gave him paid holidays and vacation days.. so can he sue me/ the apartments personally...

[JD Martin]

You need the services of an attorney, not advice here. You should have let him go as soon as he wouldn't work 9-5.

[Jeff Rabinowitz]

Can he sue you? Absolutely. Will he win? That depends on the judge and the laws in your State. Talk to a lawyer well versed in worker's comp in your State. NOW.

[Carlos Enriquez]

How long has been working under your ownership? 

Does he have a signed contract with you?

Independent contractors like he insisted he is have to carry their own workers comp.

Make sure to send him his 1099 at the end of the year.

Get an attorney to counsel you on this.  Show him your interactions with this guy that you documented in a staff file with all the above info.

Good luck.  I'm not an attorney so not sure if this guy can win with pre-existing medical problems.

[Joe Bertolino]

1. Get an attorney.

2. You should have had a WC policy the moment you took over the property.  I also recommend EPLI (employment practices insurance) because it is very cheap relative to your exposure as an employer.  

3. You have a decent argument that he was a independent contractor (working for others,  making his own schedule, etc) but you need an attorney fighting that fight and it won't be cheap.  

[Wayne Brooks]

Workers comp laws are state specific but generally, if they're working on your property it doesn't matter if he is an employee, a sub/independent contractor, a contractor's employee whatever, you are ultimately responsible, if; they got hurt on your property and they not covered by workers comp by themselves or anyone else.  But yep, see a local workers comp attorney.

[Account Closed]

@Rochelle Wilkinson - as the others have stated, consult an attorney experienced in matters like this immediately.

Expect your attorney to discuss with you how this issue may bleed over into some other potential exposure/liability.  Too often, folks want their "independent contractor" to be just that, but their actions drift into areas which the IRS sees them as actually being an employee (e.g., wanting him to work specific hours, providing paid holidays and vacation time).  Is so, then the matter isn't just limited to WC, there is the whole issue of unemployment insurance, matching social security, and other such soft costs that come into play.

[Rochelle Wilkinson]

Originally posted by @Carlos Enriquez:

How long has been working under your ownership? 

Does he have a signed contract with you?

Independent contractors like he insisted he is have to carry their own workers comp.

Make sure to send him his 1099 at the end of the year.

Get an attorney to counsel you on this.  Show him your interactions with this guy that you documented in a staff file with all the above info.

Good luck.  I'm not an attorney so not sure if this guy can win with pre-existing medical problems.

 FYI.. he sued his last employer.. I learned this but he was already working at the complex.. was one of my big reasons for saying " if you cant carry the tile or paint, maybe this job isnt for you".. didnt want him doing something on my watch that he could come back at me for

[Account Closed]

@Rochelle Wilkinson He sounds like a real prize.  Good luck with it. 

[Bill Hamilton]

This may sound a little harsh but my wife worked with a restaurant group for a number of years. Their policy when they bought a restaurant with existing staff was to immediately fire everyone, then make them go through the application and hiring process. In their lawyers opinion it wiped out any preexisting claims, denied any chance of a discrimination suit from anything that happened prior to their taking over and allowed them to make logical decisions on who to rehire. It didn't make them super popular with the existing staff but them again, they weren't there to make friends. I had forgotten all about this practice until your post reminded me. I think I will make sure to keep that in mind if I ever buy something like what you stepped into. Sorry it doesn't help you now but.......

[Gino Barbaro]

@Rochelle Wilkinson

Hi Rochelle,

We inherited a similar situation.  From what it sounds, you did not control his mode of employment, telling him he has to work certain hours, and the fact that he has another job is also indicative that he sounds like an independent contractor.  You need to contact a lawyer and confront this head on.  Our biggest problem was keeping the manager on board when we purchased the property, even though it felt as if he thought he was the owner.  He should have been relieved immediately.  

It was a learning experience for us.  All independent contractors are issued 1099s, and any full time employees are withheld taxes and have workers comp.  It is a bump in the road for you, but it's good that it happened early on so you can make the proper adjustments

God Luck

Gino

[Rochelle Wilkinson]

Originally posted by @Gino Barbaro:

@Rochelle Wilkinson

Hi Rochelle,

We inherited a similar situation.  From what it sounds, you did not control his mode of employment, telling him he has to work certain hours, and the fact that he has another job is also indicative that he sounds like an independent contractor.  You need to contact a lawyer and confront this head on.  Our biggest problem was keeping the manager on board when we purchased the property, even though it felt as if he thought he was the owner.  He should have been relieved immediately.  

It was a learning experience for us.  All independent contractors are issued 1099s, and any full time employees are withheld taxes and have workers comp.  It is a bump in the road for you, but it's good that it happened early on so you can make the proper adjustments

God Luck

Gino

 Thanks for the glimmer of hope.. he was issued 1099's for the  years he worked there.. I will be contacting an attorney tomorrow morning first thing.. 

[Gino Barbaro]

@Rochelle Wilkinson

Good, at least there is a track record

Gino

[Matthew Paul]

Its sounds like its going to be your word against his . Your words should be coming from a lawyers mouth .