How to let go of a contractor - ?

Question

I run a small IT shop, and we have a contractor that works for me, who from day 1, I knew was going to be difficult to some degree.

Aside from letting him go from day 2, he doesn't follow through on tasks, has lied, BUT he makes himself look good in-front of the clients.

QUESTION:

I need to git rid of him. I cannot afford workers comp.

1st - he does not deserve it if we owe it.

2nd - he does not do the work.

What should we do?

If we let him go, can he claim workers comp?(he does not carry his own workers comp)

Or do we have to LET him quit?

Help in California!

Answer 1

Workers comp is if he gets hurt on the job.  I think you mean, unemployment.  

No, contractors can't get unemployment.  But, is he REALLY a contractor, or do you just call him that?  When is his contract up? What does your contract agreement say, about unsatisfactory work?  If you have to "let him go", then it doesn't sound like he's really a contractor.   If he's really an employee, he might be able to collect unemployment.

And I'd suggest, if you don't know how to run your business (ie, if you need strangers on the internet to help you decide to get rid of dead weight in your office), you're going to have other problems.  

The following list of sample questions can assist in the determination of an employer‑employee relationship.  This list of questions is not exclusive.  In addition, no one question is determinative.

A.            Ã¢Â€ÂœRIGHT TO CONTROL” TEST

      1.         Who controls the means and methods of the work performance?

      2.          Does the worker hold his services out to the general public?

      3.          Does the worker perform the task without supervision?

      4.          Does the worker possess the required permits, licenses and certificates?

      5.          Is the worker doing business as a corporation or under an assumed business name?

      6.         Does the work require extensive skill, education or experience?

      7.         Who establishes the routine or schedule?

      8.         What is the duration of the relationship?

      9.         What is the method of payment, whether by time or by job?

      10.       Are taxes deducted or withheld from the workers' check?

      11.       Who determines the hours of work?

      12.        Does the worker receive fringe benefits or bonuses?

      13.        Who provides the equipment necessary for completion of the work task?

If the totality of responses to these questions leads to the conclusion that an employer “controls” its worker, then the analysis concludes and the employer must be insured for workers' compensation purposes.  On the other hand, if the cumulative results reveal that a worker should not be classified as an employee under the “right to control” test, then the next list of questions must be asked.

            B.            Ã¢Â€ÂœNATURE OF THE BUSINESS” TEST:

                1.     Is the work being performed of the type that normally could be carried out by an

                        employee in the usual course of business?

    2.     Are the activities being performed by the workers an integral part of the employer's regular business?

If the response to these questions is in the affirmative, then a statutory employee-employer relationship exists, and the employer must provide workers' compensation coverage for that worker.

III.            EXAMPLES:

The following examples may prove helpful when determining whether a worker is properly classified as an employee or an independent contractor for workers' compensation purposes.

1.         Under the “right to control” test, a truck driver is an employee when the company/employer exerts the requisite amount of control over their drivers.  Specifically, if the employer instructs the driver on maintaining, parking and loading the truck; provides specific travel routes to the driver; instructs him not to drive during inclement weather; pays all maintenance and fuel costs for the truck and handles all contracting with third parties; then the employer controls the truck‑driving activities.  Therefore, an employee‑employer relationship exists between the parties and workers' compensation is required.[1]

2.         A manufacturer is a “statutory employer”, for workers’ compensation purposes, of a worker hired through a temporary agency, where the manufacturer owned the premises and carried on the business where the worker worked, supervised the work, and had the power to replace the worker if the work was unsatisfactory.[2]

3.         A manufacturer that owned lumber to be shipped to its factory was in the business of hauling lumber, and thus was the statutory employer of a worker hired under contract to haul the lumber and load it on railcars at a specified price per thousand.  If the work being performed pertains to the business, trade, or occupation carried on by the claimed employer for pecuniary gain, then the person performing the work is an employee, even if hired as an independent contractor.[3]

4.         A landowner, who is not in the lumber or logging business, but hires a logger to cut and remove trees from the land is not the “statutory employer” of a worker hired by the logger to assist in cutting and removing the timber.[4]  The logging work was not part of the landowner’s regular trade or business and the landowner did not direct the means or method the work was to be performed.

Answer 2

Workers comp is for injuries on the job.... not for being fired.

With unemployment you have to show that you where let go by no fault of your own. The company closed, there was a layoff or whatever. If the employee quit or was just fired they have a no go in that respect.

It would be a good idea to write the person up a couple of times and have them sign it. That is burden of proof enough for you for all things.

Personally I would just fire him

Answer 3

workers compensation is for injury on the job.

Just tell him...he isn't working out and you have to let him go.