How to fight a work-related injury claim?

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How to fight a work-related injury claim?

An employee claims to have “trauma” due to her work at my restaurant. She in not on the payroll; she is paid in cash. Her hours are only from 9 am to 9 pm on Saturday and Sundays. Her suppossed trauma comes from repeatedly doing the same thing over and over (waitress). She has since seen a doctor and a lawyer. The lawyer has sent a letter requesting workers comp information. Would she be able to collect or sue?

Asked on October 27, 2010 under Employment Labor Law, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

First, how someone is paid--cash, check, direct deposit, etc.--has no bearing on whether she is an employee and therefore whether is eligible for worker's compensation. However, if you have not been paid worker's compensation for her, then when she tries to collect, she'll be told she's not in the system--and that's where your problems REALLY start. If you didn't pay worker's comp for her, you've violated the law; furthermore, if you have not withheld taxes (e.g. FICA) from her salary and remitted to the government, you are in violation of tax laws and potentially subject to large penalties. Whether or not you pay somone in cash or via payroll, you MUST withhold taxes--there are no exceptions. Further, if you haven't been paying into the unemployment insurance fund for her, that's another violation. If her lawyer is requresting worker's comp info, there's  an excellent chance this will all come out, so you need to retain an employment attorney IMMEDIATELY to begin correcting this situation and planning how you will protect yourself and your restaurant from significant potential liability.


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