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Unread 03-04-2021, 12:45 PM   #16
speed51133
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OK, I agree a settlement out of court is the best, BUT that settlement needs to be contractual. You are best off using an attorney for that to be sure it is final and legally binding. Other than that, a judgment is the only other way to make sure it is legally "over". (aside from statute of limitations).

Based on the information presented, it sounds like it is an employee / employer situation. This would transfer liability to the employer (GC). In order to decide (legally speaking) there is a multi-factored test.
Below I have boiled it down from a law website. Now this three-pronged test should be analyzed using the totality of the circumstance. Not just one element of the test.

Behavioral control

Instructions the business gives the worker. An employee is generally subject to the business’ instructions about when, where, and how to work. All of the following are examples of types of instructions about how to do work:

When and where to do the work
What tools or equipment to use
What workers to hire or to assist with the work
Where to purchase supplies and services
What work must be performed by a specified individual
What order or sequence to follow


Financial control
Facts that show whether the business has a right to control the business aspects of the worker’s job include:

1. The extent to which the worker has unreimbursed business expenses. Independent contractors are more likely to have unreimbursed expenses than are employees. Fixed ongoing costs that are incurred regardless of whether work is currently being performed are especially important. However, employees may also incur unreimbursed expenses in connection with the services they perform for their business.
The extent of the worker’s investment. An employee usually has no investment in the work other than his or her own time. An independent contractor often has a significant investment in the facilities he or she uses in performing services for someone else. However, a significant investment is not necessary for independent contractor status.

2. The extent to which the worker makes services available to the relevant market. An independent contractor is generally free to seek out business opportunities. Independent contractors often advertise, maintain a visible business location, and are available to work in the relevant market.
How the business pays the worker. An employee is generally guaranteed a regular wage amount for an hourly, weekly, or other period of time. This usually indicates that a worker is an employee, even when the wage or salary is supplemented by a commission. An independent contractor is usually paid by a flat fee for the job. However, it is common in some professions, such as law, to pay independent contractors hourly.

3. The extent to which the worker can realize a profit or loss. Since an employer usually provides employees a workplace, tools, materials, equipment, and supplies needed for the work, and generally pays the costs of doing business, employees do not have an opportunity to make a profit or loss. An independent contractor can make a profit or loss.

Type of relationship
Facts that show the parties’ type of relationship include:

1. Written contracts describing the relationship the parties intended to create. This is probably the least important of the criteria, since what really matters is the nature of the underlying work relationship, not what the parties choose to call it. However, in close cases, the written contract can make a difference.

2. Whether the business provides the worker with employee-type benefits, such as insurance, a pension plan, vacation pay, or sick pay. The power to grant benefits carries with it the power to take them away, which is a power generally exercised by employers over employees. A true independent contractor will finance his or her own benefits out of the overall profits of the enterprise.

3. The permanency of the relationship. If the company engages a worker with the expectation that the relationship will continue indefinitely, rather than for a specific project or period, this is generally considered evidence that the intent was to create an employer-employee relationship.
The extent to which services performed by the worker are a key aspect of the regular business of the company. If a worker provides services that are a key aspect of the company’s regular business activity, it is more likely that the company will have the right to direct and control his or her activities. For example, if a law firm hires an attorney, it is likely that it will present the attorney’s work as its own and would have the right to control or direct that work. This would indicate an employer-employee relationship.
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Unread 03-05-2021, 01:55 PM   #17
Mike Greenwood
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The rational for a strong case is this:
1) my team and I were hourly employees
2) the invoice sent to the client was drafted under the GC’s company letterhead
3) in said invoice, it denotes all of the labor monies paid to me as “general labor”

Instead of losing another nights sleep. I filed a claim on my GL Ins policy. Will I suffer in the future due to higher premiums...... yes!
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Unread 03-05-2021, 03:14 PM   #18
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Understand. By "we have a strong case" I thought you were including your GC.
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Unread 03-05-2021, 08:56 PM   #19
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No sir. The GC is full responsible for the architectural change. Therefore he should bear the responsibility for its downfall
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Unread 03-06-2021, 09:54 AM   #20
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And so once again it begins.
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Unread 03-06-2021, 10:45 AM   #21
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:
“And so once again it begins“ - Don Dave Gobis
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Unread 03-06-2021, 01:54 PM   #22
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Don't sugar coat it like that Mike. Tell us how you really feel.........

Unless you have been in this situation then your advice to go get an attorney is the definition of anecdotal.

I speak from experience. I was taken to court one time. The one and only time I signed a written contract. The guy sued me for $16k. The lawyer cost me $50k. The witnesses against me lied their asses off. Even then the arbitrator split 50-50. I paid the guy $8k. If this bs every lands on my doorstep again, I'll make sure I go to the offended party and reason, WAY before I call a lawyer. Even if it doesn't work out amicably I would go to court without a $400-600 hr attorney.

40% of my work use to be re-dos on pool tile failures. Every single one of those that went the attorney route spent more on the attorney than the cost of the job. One actually spent $450k and afterwards paid me $150k to re-do the job.

Stay away from the court option at any cost and if you can't do that then muster up some confidence and go to court without the lawyer. You don't need one, IMHO. You can articulate the situation better than a lawyer.

Get some advice from someone in the know first like Dave G. Tell the entire truth then decide what to do. Odds are that paying your way out or re doing the job to get it right will be FAR cheaper than going to court with an attorney. If you do end up in court have witnesses like Dave G on your behalf. That is the one thing that I was missing in my case. Hind sight.... They can do far more than an attorney and are well worth the $$.

Quote:
Originally Posted by Lou
Been involved in that kind of scenario. Get ready for a *lot* of back and forth.
Lawyers love the back and forth.
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Unread 03-06-2021, 08:30 PM   #23
speed51133
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Actually, I do have first hand experience. I am an attorney. And if you get sued and represent yourself, please record it. It would make an excellent gag reel. Real court isn't judge judy where you just spew your random thoughts.
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Unread 03-06-2021, 08:33 PM   #24
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Well that explains enough for me.
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Unread 03-07-2021, 07:20 AM   #25
speed51133
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Please elaborate, the information I provided above list exactly how a judge is going to determine whether you are a subcontractor or an employee. without an attorney you wouldn't know that and you wouldn't know how to use that information to convince a judge. Laying out these arguments in a coherent manner and directly related in order significantly increases your chances of a positive outcome.yes, out of court settlements are preferable. But without at least the advice of an attorney you have no idea if you're out of court settlement is going to be binding and lasting.

your argument that it costs too much is the equivalent of saying a CPA or a tax attorney simply cost too much when preparing your taxes. Yes, if you only make $50,000 a year you probably don't need that. But when you start making more money and have different sources of income you really need that kind of advice, not only to tell you how to do taxes most efficiently but also to tell you how to use your money and try to create more wealth.

Have fun just winging everything throughout life without a professional. I can say the same thing about using a so-called professional tile setter. Why would I do that when I can do it myself for free.
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Unread 03-17-2021, 11:47 AM   #26
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As stated earlier. I have a great attorney. He has been a friend for 25 plus years. The thought of walking into a courtroom without council baffles me. That’s terrible advice. Speed you very well know that +90% of cases are settled prior to trial. And even if we do get to trial, the judge will just split the baby.
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Unread 03-21-2021, 12:42 AM   #27
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Sincerely hope you have the best resolve from this situation and wish the best of luck in your legal pursuit.

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