problem employee and employee permitted to work on side
June 2, 2012
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Question
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Ken
Quick question, a former employee (to whom we still owe about $500) came yesterday to our garage, used his key to drive the truck away, took a bunch of tools and equipment, then brought the truck back. What can I do legally?
Thanks,
Ahron
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Answer
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The joy ride was of course illegal and you can press criminal charges. You don't mention is the tools and equipment belonged to the employee, because you don't mention if that property was returned.
You shouldn't owe wages to your employee. Wages should be paid when due. You risk substantial penalties when you withhold wages. Check with the Department of Labor in your area for the law regarding withholding wages and when if ever you are permitted to offset debt owed you by your employee from the employee's wages.
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another employee question
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Ken,
I have an employee who works for us part time, he has a few “friends” and clients who would like us to monitor there alarm systems. The employee would be getting a quarterly commission check for each system. However, he will be installing the alarm system “on the side” (not under our employment, at time of install/service) and having us monitor them. Does that pose an issue of liability for us? They will be signing the monitoring contract we bought from you with all our information.
The next question is if these “friends and “clients” do sign a monitoring contract with us and the employee services them “on the side” (not under our employment, at time of install/service) does that pose a risk for us? Who would have the liability if there ever was a problem?
Do your Monitoring contracts state anything about a non employee servicing the alarm system?
Thanks as always.
Lonny Lieberman
Prestige Sound and Video
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Answer
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Since your employee is not separately licensed [in New York] he is not permitted to sell or install alarm systems. That aside, you should be concerned with potential liability that you may face for enabling your unlicensed employee to engage in licensed alarm work.
Another concern is confusion by the subscriber. If the subscriber believes that you are the alarm company, for all purposes and services, and has a reasonable basis to reach that conclusion, then you may be held liable for the breach of contract or negligence of your employee, even though you and the employee will agree that the employee was acting independently.
You should insist that the employee disclose his independence to the subscriber, and that is best done with the employee using his own contract, even though unlicensed. [by the way, even if licensed, that only cures the license issue, not the confusion issue]. So the employee will have the subscriber sign the employee's Sales Contract and the employee's Service Contract. The monitoring contract can be on your form. [those of you who do your own sales, installation, monitoring and service contract - use the All in One]
This employee also appears to be getting a commission on the payments to be made by this subscriber for the monitoring services. That agreement needs to be in writing, signed by employee and employer. The penalty for not have a commission agreement in writing [at least in New York] is that in any lawsuit where the commission is disputed only the employee is permitted to testify what the commission agreement was. Use the Employment Contract.
None of my Standard Form Contract mention a non employee performing work independently, but all of the Standard Form Contracts do expressly permit the alarm company to subcontract any work or services to be performed and disclaims any responsibility by the alarm company for the performance of the subcontractor. In your scenario the employee, when properly disclosed, would be a subcontractor independent of the alarm company.