How to fight a work-related injury claim?
Get Legal Help Today
Compare Quotes From Top Companies and Save
Secured with SHA-256 Encryption
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 13 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.
IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.