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Discussion Forum

My Contractor Has Disappeared

| Posted in General Discussion on January 6, 2003 08:34am

It seems my contractor has walked.  I searched for over a year for the “right” contractor for our job.  I got this guy’s name from the local lumber yard.  I drove by another of his jobs in process – work looked good.  Checked him out with the state – no outstanding complaints.  We came to an agreement on the job and demolition began the first week of September.

This is a kitchen/family room remodel, done on a time and materials basis.  We have done demolition, hauling, site clean-up, purchasing, painting – stuff like that ourselves, all outlined in our agreement.  We have never held up the job and have done all of our part of the work as agreed.  He has been very pleased with the quality of our work (we’ve been DIY’ing since 1983).  The quality of the work that the contractor has done is very satisfactory.

We have paid every invoice on the spot in full.  We have had a good relationship with the contractor and the other two guys who work with him, and also with his tile sub who installed the saltillo floor.

The contractor was doing two or more jobs at once, which is fine.  Since ours was time and materials we agreed in the beginning that he would fit us in around his other schedule.  The estimate was that our job would be done 10/31.

He actually worked on our house about one day a week.  Sometimes he didn’t come for over a week.  He would usually call in the morning and tell us when he was coming, and  about what time.  He was always at least two hours late.  Sometimes he would call and then never come.  I don’t think he is deceptive – I think he is terribly disorganized.

Two weeks before Thanksgiving I told him I had 12 people coming to stay for Thanksgiving and that I didn’t know what I was going to do with no kitchen or family room (or living room or dining room, since those were packed full with all the stuff from the kitchen and family room).  He promised we would be moved in by the Tuesday before Thanksgiving.  I promised him a case of beer if he could make that happen.

Didn’t happen.  The day before Thanksgiving he showed up alone, with an invoice for the past week’s work, and said he was working free that day until the sink, stove and dishwasher were working because he felt so badly for being so far behind.  He was there until 9 that evening.  The sink does work, and the dishwasher and stove, while not fully installed, do work.  That is the last we saw of him.

A lot of the job is not finished.  The “butcher block” countertops are not fastened down.  A 12″ cabinet base is not yet made or installed.  A HVAC register needs to be cut through the wood ceiling in the family room.  The attic electric work is unfinished, unsafe and will not pass inspection.  The power in one wall is not connected.  The finish work is not started – trim, drywall shim/patch at the beam ends of the ceiling, etc.  One of the cabinet doors on the island base is missing.  A door needs to be framed out and installed on the heater closet.  I can’t do much of this work myself.

I have left several messages on his phone and emailed him, asking him if he is coming back, and then basically begging him to come back.  He has not responded.  I do know that he has a history of clinical depression, so perhaps he is suffering from an episode of it now.  Or maybe he just got another job with a client who yells at him when he doesn’t show up?  I don’t yell at people.

I’m paying this guy $50 and hour for him and his helpers, and he keeps track of the hours, so I have to believe he was making money on my job.

What would you do now if you were me?

 

“A completed home is a listed home.”

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Replies

  1. xMikeSmith | Jan 06, 2003 09:00pm | #1

    lisa: two questions ?      where do you live ?      &

    is that $50 / hour for each or $50 / hour for all 3... ie: if there are 3 guys working , do you pay $150/ hour ?

    i don't think he's comming back.. but you could ask at the lumber yard where you got the original referral

    Mike Smith   Rhode Island : Design / Build / Repair / Restore

    1. LisaWL | Jan 06, 2003 09:04pm | #2

      We live in Sacramento.  It's $50 per man hour worked, so if all three are here I'm paying $150/hour.  Thanks for your reply.  I'm afraid you're right.  :-(

      "A completed home is a listed home."

      1. LisaWL | Jan 06, 2003 09:40pm | #3

        OK - WAIT!!  I should have posted my problem weeks ago - seems that posting it here has triggered the solution!!

        The contractor just called and said he'll be here Thursday to go over the job and make a materials list.  Then they'll be here the following Tuesday to start work again.  Which probably means he'll really be here Thursday around 11:00 and will start work the following Thursday, but I don't care.  At least we're back in the saddle.

        He said he was having a hard time getting his guys to show up for work over the holidays and he was having a hard time getting materials delivered so they just decided to shut down for the holidays.  It would have been nice if he had told me ahead of time.

        The last time he was here he offered me a job working for him.  I declined as tutoring my kids is my job right now.  But maybe I should rethink that?  I pay him $50 and hour and then he pays me $20, but at least I would show up for work.  ;-)

        Hopefully we'll continue our slow, steady progress from here on out.  Wish me luck!

        "A completed home is a listed home."

        1. xMikeSmith | Jan 07, 2003 12:02am | #4

          lisa, you deserve better than you're getting..but , good luck anywaysMike Smith   Rhode Island : Design / Build / Repair / Restore

          1. User avater
            BossHog | Jan 07, 2003 12:11am | #5

            I'm with Mike. I don't like what you're telling us this guy has been doing.

            Sounds like a "Crisis Manager". The only way to get him moving will be to stay on him like a wet diaper on a baby's butt. If my lips are on fire for you, could I extenguish the flames in your cleavage?

          2. LisaWL | Jan 07, 2003 01:13am | #6

            Boss Hog and Mike Smith - you're right, of course.  I like this guy personally, and I trust him in my home and around my kids, which counts for a lot.  But I often wonder if this job will ever really be finished.  I'm beginning to feel more and more like Murphy Brown with my own "Eldon".  He's already making plans for how we should remodel the master bathroom...

            Maybe I should change my nickname to "Soggyhuggie"?

            "A completed home is a listed home."

          3. carlsperry | Jan 07, 2003 01:48am | #7

            Lisa L.

             

                  T&M is illegal in CA.  Look it up it's true.  I would sit this guy down and have a talk with him.  State your concerns and issues and let him state his.  Hopefully you can work out a solution between the two of you and not envolve any outside agencies.  I would go over your contract carefully and make sure that EVERYONE understands what is supposed to be done and how it is supposed to look when done.  If one party is in the know and the other is not then you are headed for disaster.  Sounds like you are doing all the communication work and not getting much in return.   

          4. UncleDunc | Jan 07, 2003 01:54am | #8

            >> T&M is illegal in CA.

            Really? How do people price jobs when there's no way to know at the beginning what the job is going to take?

          5. riverr1 | Jan 07, 2003 02:08am | #10

            Dunc,

            There are a couple of ways around T&M which usually come down to a well written contract. I'm not sure I buy into T&M being illegal in CA. I know a painter who is contracted in LA for Graffiti, and I think all his work is T&M. I think that it is maybe more of a really restricted method. I also know Bechtel and Daniels have built refineries and power plants in CA which are all T&M.

            Lisa,

            This guy is stroking you! Problem is--it's not all that uncommon. What does his crew have to do with him showing up to work? Some of what you mentioned as incomplete doesn't need more then one person to finish. What does his crew or the holiday season have to do with not calling you? What does it have to do with the delays so far. Not getting materials is BS also. Call around some yards and see if they quit deliverying over the holidays. More then likely you will find it's a very busy time for the yards since homeowners usually have time off to work around the house.

            My suggestion is if you want this done, you tell him no more draws until the work is completed and that you are to sign off on all hours for payment approval. Very common with T&M work.

            Don

          6. LisaWL | Jan 07, 2003 02:58am | #11

            I agree that he is talking around his problems.  As long as he keeps moving forward I don't really care.  I've hired many contractors in the last 20 years, and haven't found a perfect one yet (although I have a plumber who comes darned close).  I've come to learn that it's not finding one without problems, but finding one whose problems you can cope with that is important.  As long as contractors are human I expect that will be the case!

            I'm sure that contractors do the same thing.  There's no perfect client, but you make competitive bids and show great interest to the ones who you would feel comfortable working with and who you would trust to pay you and keep up their end of the deal.

            We do have a precise contract and I have no complaints about his work.  If time and materials is indeed illegal in California (which I doubt - I did try to look it up and couldn't find any thing), then a whole lot of people are breaking the law here!  This job is indeed one of those jobs packed full of unknowns.  I had several contractors who wouldn't even bid on this job because of the unknowns.  Those who did had to bid very high to cover the "what if" problems. 

            The contractor I hired did one of these bids.  We decided that if it did come in that high we could swing it, but we all agreed that it probably wouldn't.  So far it looks like we will come in about 10K under his bid when it's all said and done, which is just about what I was hoping for.  Since we didn't borrow the money to pay for the job, we are able to pay without having to satisfy a bank's requirements.  I don't pay for anything until the work has been done and I have accepted it.  I do have a general idea of the hours worked, but I don't track the 15 minutes here and there.  And I get a copy of the purchase receipt for all materials used too.

            In his favor, the contractor didn't ask for an upfront deposit of any kind.  He has loaned us his tools for some of the work we have done, and loaned us some chain link fence at no charge when a tree took out our fence in November.  He is a skilled carpenter/electrician/plumber, and is polite, clean, intelligent, respectful, and has a good sense of humor.

            Really, the problem is punctuality and communication.  If he had indeed not come back to finish the job, my problem would have been finding someone else to come in and finish it under similar terms.  I'm not interested in filing suits against people or going to small claims court - I just want my house finished!  I think that when he comes on Thursday I will tell him that due to the lack of communication in the last 5 weeks, I need the number to the cell phone that he uses with his crew.  The one I have is always answered by voice mail.  And then I will be the wet diaper he hears from every time he forgets to call.  Jeez, this is way too much like managing a husband.  ;-)

            "A completed home is a listed home."

            Edited 1/6/2003 7:39:27 PM ET by Lisa L

          7. User avater
            ProDek | Jan 07, 2003 03:50am | #12

            Sounds like he's in over his head to me.

            Finished or not the most important rule of remodeling, next to a broom and a dust pan, is open communication.

            Sorry for your grief.

            Kitchen remodels are the worst, because of the inconvenience to the customer.

            I hope it all works out and you are happy with the end results.Bob

            "Rather be a hammer than a nail"

          8. LisaWL | Jan 07, 2003 04:01am | #13

            Sounds like he's in over his head

            Do you mean in general or on my job in particular?  If you mean on my job in particular, and it was your job, would you let him go and start over with someone else at this point?

            "A completed home is a listed home."

          9. User avater
            ProDek | Jan 07, 2003 06:05am | #16

            "Sounds like he's in over his head"

            No Lisa- I would let him finish what he has started.

             I meant that he has too many irons in the fire and is a poor manager, of not only his time, but of his communication skills....And I would definitely let him know about it.

            You don't leave any customer "hangin" while your busy doing other business.

            Encourage this guy by telling him why you hired him in the first place."You do beautiful work, BUT, we really need our kitchen operational, we understand some unforeseeable delays but we are really dragging this thing out." 

            He must be somewhat talented or he wouldn't be so busy.

            Don't give him any slack. By this I mean don't nag him, watch over him, or find fault in any of his work until he is completely finished.I do mean tell him "we're really having scheduling problems here and we need to get back on schedule according to our contract." 

            Good Luck

            Bob

            "Rather be a hammer than a nail"

            Edited 1/20/2003 8:17:35 PM ET by Pro-Dek

          10. stonefever | Jan 07, 2003 04:24am | #14

            1.  The issue about T & M.      

            California is big on making sure workers are properly covered for workers compensation issues, let alone other ones such as income taxes, licenses, etc.   

            What several posters have mentioned is all correct, save for the perspective.   When a homeowner directly employs another PERSON(s) to do such construction work and pays them on a T and M basis, that employee is being inadequately covered for the potential risks to his long term well being (not that any of you do differently each and every day).  In essence, the worker must provide for his own insurance coverage for what ever risk he faces (health, worker's comp, disability, retirement, taxes).  Does that ever really happen? 

            From another perspective, when a homeowner contracts with an established company that has such insurance coverage as part of its employment agreement with its employees, the T & M issue is quite legal as long as it has the cost of these ancillary risk coverages built in (meaning taxes and one behaves like a normal business). 

            I would believe Lisa's arrangement would qualify for the later especially since the $50 for the helpers appears to have an override built in (meaning its high for example #1).  But whether or not her contractor has these insurance coverages is another issue.

            If Lisa is hiring herself, Lisa needs to terminate her potential exposure to a worker's lawsuit should he fall off the roof unto the wrought iron fence and creates himself a new a**hole.  Let alone the IRS potential claims for past due FICA withholdings.  And more.

            She has the same risks if her contractor is uncovered.

            2.  The Big Issue,

            Been there, done that.  Just down the coast aways.

            Personal T & M hiring allows you the most flexibility.  And can be more cost effective.

             It has more risks obviously.  But it becomes a question of how you handle those risks.  By requiring the workers to provide some of their own tools, getting their SS#, name and address and then tell them you will be sending them a 1099 at the end of the year (then do it), you essentially deflect much of that risk properly to the worker.  But when doing so, don't screw the man.  Make sure he gets paid what he needs to be in order to take care of those obligations plus caring for his family.  Make sure he gets the knowledge to follow through on those obligations.

            Then get yourself an insurance liability rider for several million.  Actually doesn't cost that much considering.  Then record faithfully your expenses in Quicken (or whatever) and maintain a diary.

            3.   But what's going on with your buddy:

            This mental affliction is the root of his devil.  If you can tolerate it, you'll get a more appreciative guy, but not any more loyal.  This behavior will continue.  Believe me.  It happened over and over to me.  Me, I could tolerate it.  My wife couldn't.  What about you?  Is his work so good, or his personality so wonderful, that it would hurt your project by changing?  What's the cost of changing?  In the end, it's how you end up feeling.

            There's other guys out there, you just have to look around and ask who's had good luck.  Since you already have been disrespected, I believe you have the right to discretely look for a replacement.

            Should you get P.O.ed and run the guy off, nothing will happen until the next guy is available.  Should you like to take advantage of the situation now, have your man keep going until just before the next guy is to begin.  Then tell him that you want to do it yourself from here out.  Since he is on T & M, he has no other claim.  But pay him up and wish him well.  You may need him again.

          11. junkhound | Jan 07, 2003 04:43am | #15

            Sounds like another case for being in favor of DIY all yourself.

          12. riverr1 | Jan 07, 2003 08:23am | #17

            Stonefever,

            I don't know the state rules for where you are at, but by federal rules all Lisa has to do is have a contract stipulating that the contractor is required to provide their own coverage and show proof before starting, and then 1099 them. It's pretty much sop around here for the homeowners that want to GC their own work, which they can do. It's one way around a lot of permit issues with some of the licensed trades. As long as the work passes inspection, if the homeowner pulled the permit, doesn't really matter who did the work as long as it passes inspection. Part of the process is final payment is not at completion, but after successful inspection and the permit is signed off.

            Don

          13. LisaWL | Jan 17, 2003 11:11pm | #18

            Update.

            Met with the contractor the 9th - went over everything that needs to be completed and we made a materials list.  He said he would be here the 14th with two other guys, and that they would bang out the work.

            Didn't show up.  Didn't call me.  I left messages on the 14th and 15th, and emailed him on the 15th.  No reply.  So I decided to give up on him.  Yesterday I left a message and email telling him that I just didn't have any more patience and had decided to find someone else to finish the work.  Wished him all the best.  That got me a return call, but I really am done with him.  It's been 8 weeks since any work has been done here. 

            I have no reason to believe he would ever actually finish the job.  His excuse this time was that he had been busy fixing the window on his truck.  Jeez.  If he would show up and work here for a couple of days, he could have his window repaired at a shop and have money left over.  Being homeowner in a remodel isn't as easy as it looks, kids.

            So now I'm in the unenviable position of either finding someone to finish someone else's job (now, really, which of you would relish that idea?), or doing it myself.  I really don't wanna finish it myself, but I'm afriad I'm going to have to.  Unintentional DIY - I think that's how a lot of DIY'ers get going. 

            In the meantime I'll keep asking around for a contractor.  I went to the cabinet shop this morning to order the base cabinet that still needs to be installed (which was never even ordered.....grrrr.....), I asked the cabinet guy about contractors.  He said he works with many and wouldn't recommend any of them.  Must be something in the water around here?

            OK, gotta go look in the archives to learn how to fasten down "butcher block" counter tops to allow for contraction and expansion.  Dang.

            "A completed home is a listed home."

          14. heck22 | Jan 17, 2003 11:26pm | #19

            I'm sorry you are having a rough time, Lisa. I'm sure there are a bunch of us on BT that wish we were closer so we could help.

            Maybe you could have a 'fest' and hand everyone a tool as they come in..:-)

            Other than that idea, I don't have any other advice, except to say...hang in there!

            jwwhat the heck was I thinking?

          15. Remodeler | Jan 21, 2003 07:54pm | #32

            If this would make you feel better...

            I have worked construction most my life, starting with tree-house forts when I was eleven (stud walls!).  I worked masonry, then mechanical (HVAC) about 7 years, and now sitework.

            I was married to a house (and woman) a year ago - the house was in terrible shape.  In the past year I have completely redone the HVAC, gas, electrical, water, and tapped the city water main.  The sewer has had some amount of work.  All myself, seldom with a helper, this is the stuff you can't even see...

            Every room needed remodeling at best or structural repair.  We have lacked water period 3 mos out of last 12, hot water probably half that.  Every appliance was shot.  Good god it's been a lot of work.  All new ductwork, furnace, insulation, etc.  So now the remodeling is moving into the living areas.  Adding 2nd bath and new kitchen, walls coming out, jackhammering (finished now), dust over everything.  My wife is a packrat, I have removed/disposed of probably 80 cy of stuff before I could even start. 

            And I hope to have all this done before the new baby comes in May.  So I can start on the outside.  I cut all the landscaping out, need to till yard under and redo, concrete to pour, patio to dig out, siding to do, need reroofing in spring, new doors etc.  Also subsurface drainage, have materials for this.  I am making the cabinets for the kitchen myself.  All of my free time goes to the house.

            The upshot is:  1400 sq 3 br / 2 ba and den on 1/2 acre lot in city. We refinanced, monthly mortgage is fixed $350 w/no vehicle payments and a nice house when we are through.  My wife can stay home, and I can not worry too much about finances.  We may save and build a house.  But the process isn't fun right now.

            remodeler

          16. LisaWL | Jan 21, 2003 08:04pm | #33

            Aaaahhhh!  That's giving me flashbacks to the house we sold three years ago.  Worst day - no back on the house, birds flying in and out, 107 degrees outside, no kitchen, and me home with 14 month old twins who had chicken pox.  They sat in cool water in the tub all day and cried, while I sat on the floor next to them and joined in occasionally.

            But hang in there - it will be worth it!!  That house turned out beautifully and so will yours.  I wish you smooth sailing, healthy take out food, and a safe delivery for your wife and baby.

            "A completed home is a listed home."

          17. rez | Jan 21, 2003 08:07pm | #34

            Fixed $350 and no vehicle payments!

            Wake up in the morning with a smile.

            Have a friend with a third mortgage on his place w/car payment. Lives to work and a hour drive each way to his employment.

            Renovation is the way to go.

            Half of good living is staying out of bad situations.

            The other...proper application of risk.

             

             

          18. stonefever | Jan 18, 2003 03:01am | #20

            It bums you out when you try to work with someone that you like and he falls down on you.  You now know this guy will continue with the pattern.  Don't go back.  No matter how tough it gets.

            But my in experience, my best worker (a finish carp, stayed on the job 3 years til all done), just walked up to the house one day when I was outside working in front.  I always added another 5 to 10% on his bill.  Kept him coming back.  And always had something for him to do.  Sometimes that in itself kept me quite busy.

            But also, the one I personally liked the best ( a sparky), flaked out on me just as you described your guy.  And its happened so many times with different guys in different places.

            Obviously the root of the problem lies in ineffective business practices.  However, its not our job as clients to solve those problems for them.  Our job is to determine which personalities will work more effectively with ours.  And then pay those personalities a fair wage for having to deal with our silly jobs and personalities as well.  This means if your personality requires a guy to be at your place punching a timeclock and providing you with computerized statements, you better damn well make it worth his while.

            By focusing on the personality, communication and trust in one another develops. 

            When your project is poorly described (interpreted as not having COMPLETE arch. drawings - stamped as necessary, complete highly detailed specifications, difficult working conditions, etc.), those people that deal best with speed and production are thrown out of whack.  Those that deal best with solving the aforementioned problems don't work as fast.  You gotta have realistic expectations.

            As a result, when a more attractive job comes along that fits that particular person's personality, he, by nature, gravitates towards that direction.  Accordingly, it becomes your problem to either make your job more attractive, find someone that can deal with it, or assume a more problem solving position so as to leave nothing to second guess.

            And this second guessing issue is where experience comes into play.

            As far as your current labor shortage issue, look around your neighborhood where some construction has recently been completed.  Those projects should be somewhat similar to yours.  Go up to the front door and ask the lady of the house if she would hire them again.  I'd try at least 3 or 4 houses to get a good list of names.

            Best wishes.

          19. LisaWL | Jan 21, 2003 03:12am | #21

            Thank you, jw and stonefever. 

            jw - I would be happy to host a fest one day!  But no working allowed - just Bar-B-Que and other fine eats, plenty of libations, volleyball, bodies floating in the pool, water gun fights, ping pong, music, a soak in the spa, foosball, and guitar strumming 'til the wee hours.

            stonefever - That sums it up well.  I have a couple of leads for a contractor to finish the stuff I really don't want to do (mainly plumbing/electrical/HVAC), and am working on the rest of the stuff myself.  At least the project's moving forward!  I got the countertops fastened down and the finish work done on them, so I'll start tiling the backsplashes tomorrow.  I need to cut the old base cabinet ends to size to use on two upper cabinets, which sounds like a good excuse to buy the table saw I've wanted for long time.  See?  There's always an upside to things.

            "A completed home is a listed home."

          20. User avater
            RichBeckman | Jan 21, 2003 04:46am | #24

            "I would be happy to host a fest one day! But no working allowed - just Bar-B-Que and other fine eats, plenty of libations, volleyball, bodies floating in the pool, water gun fights, ping pong, music, a soak in the spa, foosball, and guitar strumming 'til the wee hours."

            Sounds great!! When and where?!?!?

            Rich Beckman

            Another day, another tool.

          21. LisaWL | Jan 21, 2003 05:28am | #25

            Sacramento.  Labor Day Weekend? 

            "A completed home is a listed home."

          22. User avater
            RichBeckman | Jan 21, 2003 09:27am | #29

            Lisa,

            You need to start a thread in the Fests folder if you are serious. It is not at all too early to determine interest and give folks a chance to schedule.

            Sacramento, hmmm. I may have to get on an airplane....

            Rich Beckman

            Another day, another tool.

          23. LisaWL | Jan 21, 2003 08:11pm | #35

            OK!  Let me pass it by DH first - he's in San Diego on business.  Shouldn't be a hard sell - nothing he loves more than a good party.

            "A completed home is a listed home."

          24. CPopejoy | Jan 21, 2003 10:43pm | #36

            Lisa,

            Small world--I'm in Sacto (Land Park).

            Shoot me an e-mail. Let's talk.

            Cliff

          25. Sancho | Jan 23, 2003 05:35am | #37

            Sacremento, I can eat breakfast and get there before I do my first.... well I can get there pretty fast.. 

            At Darkworks  Customer satisfaction Job One..Yea yea were all over it , I ll have it done by next Tuesday Oh yea I need another draw.........

          26. User avater
            Luka | Jan 21, 2003 12:02pm | #30

            Man !

            I could DRIVE to Sacramento.

            I'm there !!

            : )

            Quittin' Time

          27. heck22 | Jan 21, 2003 07:49am | #27

            "I would be happy to host a fest one day! But no working allowed - just Bar-B-Que and other fine eats, plenty of libations, volleyball, bodies floating in the pool, water gun fights, ping pong, music, a soak in the spa, foosball, and guitar strumming 'til the wee hours."

            I have been thinking about this for a long time.....Trying to figure out what sounds the best out of all that....it all sounds great...but to choose.....

            NO WORKING ALLOWED!!!  That's it!!   :-)

            what the heck was I thinking?

            Edited 1/21/2003 12:03:57 AM ET by Heck

          28. 345Fredrick | Jan 21, 2003 08:23am | #28

            Lisa,

            There is a pamphlet on  the csla website called "Putting the pieces together" that lists the components of a good contract that follows the law.  You can download it in pdf format.  My understanding is that for a Home improvement contract with a home owner, the total price is fixed.  You can have allowances and exclusions to cover for the unforseen, and deal with that with change orders, but there must be a price for the work and a list of what's included and a scope of work, and a draw schedule tied to completed phases.  A start date and a completion date. 

            Commercial contracts are another matter and follow different procedures. 

            Good luck!

            Fred

          29. 5150 | Jan 21, 2003 04:23am | #23

            Stonefever

            Do you or anybody you know pay W.C. or FICA to a dentist, doctor, lawyer, architect, engineer or any number of such 'employees' whom you or they may choose to procure services from? Do you or anybody you know 1099 them?

            For purposes of W.C. and FICA and other such regulations, lawmakers and courts distinguish between two types of employees. An employee who engages in an independent trade or profession does not come within the scope of such regulations. It would certainly be a strange and curious affair if a person employed a doctor to perform surgery on him and something would go wrong. As the employer of the doctor, would the employer be responsible for the malpractice of his employee?

            Many carpenters, painters, plumbers and other tradesmen engage in independent trades. They do not come within the definition of employee which is subject to W.C. and FICA being paid by their employer.

            T and M is not illegal in California and no person can point to any section of any statute to substantiate such claim.

          30. stonefever | Jan 21, 2003 07:30am | #26

            Robert,

            You ask a number of questions...

            But to answer directly, and a bit of comment:

            Do I or others pay WC or FICA (or even others) to the people you mention.  Actually, yes.  But not in the direct form of "here's a separate check to cover ______."  We pay for those and other types of "overhead and employee benefits" as part of the fee we pay for those services.  The IRS regs require the businessman recipent of the fees to make these payments, while the same regs require the employers of employees hired to do those same services to make those payments (and make the appropriate deductions for such from the employees gross wages).  Any good businessman (no matter what the business) has these costs in some form or another.  The question is, "To whom's balance sheet are these going to be charged against?"

            As I interpret your post, I believe you digress somewhat in your definition of employee.  Where you mention 2 types of employees,  I interpret the situation you describe as the difference between being an "independent contractor" and an "employee."  Now there are other legal more definitive descriptions, but you come quite close.  But the bottomline difference is someone who is running a business to provide a service, vs someone who is performing a chore for someone else when that someone else is supervising, providing tools, guidance, or protecting the worker from some form of risk.  The guy running the business accepts additional risks that the employee could, should, or would NOT.

            Your example about the doctor is one that I really want to take your side, but I have to recognize the doctor 1, has set his business up in such a way as to mitigate his risk exposure (corp), 2, offers his services and skills in such a way that the patient could make a life determining decision based upon such.  In such a situation, the patient is NOT supervising, providing tools, or guidance, etc.  The patient has hired a Professional Corporation to do a professional service.

            Your point about so many construction guys is sooo true!!!  People take advantage of these guys in such a poorly defined situation and have unrealistic expectations.  Something needs to happen about this problem.

            About the T & M in California - I agree with you.  Someone would be hard pressed to get me to believe it is illegal.  In the direct interpretation of the word, that is.  My post was not a real strong one to contradict the other person's post whom said it was, but more of a rational for why some people COULD form that opinion.  My take on the situation in California is that it is more of an enviroment the state goverment is trying to create to encourage or discourage certain types of business behaviors.  T & M simply being one of those behaviors.

          31. 5150 | Jan 21, 2003 06:11pm | #31

            Stonefever

            Pursuant to Arizona law (state I live in), on owner occupied residential property, a mechanic can file a lien on the owner's property only if he has a direct written contract with the owner.

            Pursuant to section 33-1005 of the Arizona statutes, money paid to a contractor as payment for labor or materials constitutes a trust fund which cannot be diverted or used for any purpose other than paying those for whom the trust is created. Thus if a property owner gives the plumbing contractor money to pay a plumber, the plumbing contractor has no legal authority to divert money in the form of FICA or taxes to the government.

            I know of one case in Tucson, where I live, whereby a contractor told the court he was in front of that he took money from the property owner and put it in his bank account and then wrote checks from his account for labor and materials. The court told him that such practice constituted a diversion of funds pursuant to section 33-1005 and that was illegal.

          32. User avater
            JeffBuck | Jan 23, 2003 06:30am | #38

            stop lying.

            U only "know of....read about..or heard of"...these cases right after U made them up.

            JeffBuck Construction   Pittsburgh,PA

             Fine Carpentery.....While U Waite                  

          33. xMikeSmith | Jan 23, 2003 06:44am | #39

            go get 'em , jeff......

            hey , robert,  shut up !.....Mike Smith   Rhode Island : Design / Build / Repair / Restore

          34. User avater
            JeffBuck | Jan 24, 2003 02:50am | #40

            I love these...

            "Well.....in one case....a guy I know.....yadda yadda yadda...."

            I know lotsa guys....but don't come close to having a guy for each point I'm trying to argue!

            I gotta meet more guys so I sound believable.......

            JeffBuck Construction   Pittsburgh,PA

             Fine Carpentery.....While U Waite                  

          35. xMikeSmith | Jan 24, 2003 03:00am | #41

            well, son...wait'l ya get to the point where ya can say..

            " well, guy i knew, usta.... yada, yada, yada... but he's dead now"

            they cain't even check yur sources.... heh, heh,heh...Mike Smith   Rhode Island : Design / Build / Repair / Restore

          36. redlead | Jan 21, 2003 03:46am | #22

            In the Bay State, we call this type of player a #### bird, or at the least, a ham and egger.

          37. User avater
            JeffBuck | Jan 07, 2003 02:05am | #9

            even if that's true......t and m being illegal....

            that don't make it wrong! Not that it suddenly becomes a bad idea just because some elected official said it was.

            I'm not saying it's good to do business with people that break the law.....I'm saying if that is the law.....it should be changed.

            Me...if I lived there.....I'd probably break the law and charge t and m when it made sense.

            JeffBuck Construction   Pittsburgh,PA

             Fine Carpentery.....While U Waite                  

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