Legal issues for firing employees

Discussion in 'Hardscaping' started by Red Shed Landscaping, Sep 23, 2013.

  1. JimLewis

    JimLewis LawnSite Fanatic
    Messages: 6,876

    DVS is mostly right in everything he said in his original post. Guys like me and DVS have had stupid threats like this happen to us several times over the years. Most people who have had employees for longer than a decade have had something similar to this happen, eventually.

    I wouldn't necessarily say he can't sue you, because he doesn't have the money to hire an attorney. I would just say there's a 90% chance he won't. There's a small chance some attorney would take this case without a retainer. That happens sometimes - taking a case on "contingency basis". That is, the attorney is pretty sure they're going to win and get a good settlement so he is willing to take the risk and cover the expenses to sue, just so her can get his 30% commission in the end. But this is by no means a slam dunk case and I think most any attorney that looked at the facts would agree, and therefor not take the case on contingency.

    Then again, you never know. The kids uncle or cousin could be an attorney and just be willing to help him out for free. So you're smart to cover your bases no matter what.

    First thing you need to know is that IA is a right to work state. That means you are free to fire the employee for any reason - with certain exceptions. For instance, you cannot fire someone for sexual discrimination, racial discrimination, because they got injured, because they got pregnant, etc. But aside from that, you can fire someone for any reason you want - or for no reason at all. In a state that has right to work laws, your best bet whenever you fire someone is to NEVER tell them why they are being fire. You simply say, "I'm sorry John. But your services are no longer needed here with our company." He replies, "What??? Why???" And you say, "I'm sorry. We just no longer need your services at our company." And he says, "So I'm being fired? You're not even going to tell me why?" And again you repeat, "Your services are no longer needed here. I'm sorry. I'll have a final check ready for you tomorrow."

    By doing this, you are perfectly within your rights. You have no obligation to explain to anyone why they're being fired. BUT, if you do tell them why they're being fired and then they come up with some evidence to refute that reason, then you could be subjecting yourself to liability (a law suit). For instance, you fire someone because they were late 2 days in a row. But then that guy gets his buddy at your company to go with him and say that he wasn't late. Now he can sue you and say you fired him for inaccurate reasons and get his job back! Or get money from you!

    So first thing you should learn is to fire people this way. Always. Let them think what they want. But you don't say why they were fired. To anyone at your company. You just let them go and move on. Then you're protecting yourself.

    Second thing is document what happened. Make some sort of form, put it in his company file. Record one form for every day something negative happened (didn't show up to work, showed up late, etc.)

    Third thing is if you ever hear of any kind of injury, you need to file a worker's comp. claim immediately. Even if it's 3 weeks later. Even if you think he's making it up. You do your part. Then you are protected.

    Don't worry about the worker's comp. claim. Those insurance companies are good at what they do and will figure out exactly what happened. If he's trying to scam them, they'll usually figure it out. Typically, they end up settling for a few grand. Sometimes nothing at all. Then your rates go up slightly and the kid eventually realizes he's not going to get too much out of them and just takes his settlement offer and goes and finds another job. That's it. But you just do your part and file the claim. Let them worry about whether he was really injured on the job. You'll get a call from the adjuster once the claim is filed and you'll have plenty of opportunity to explain that he never notified you of being injured, that you think the claim is total B.S. and that you fired him BEFORE he made the claim. Once the adjuster hears all that, he'll know how to handle it. Trust me, they are good at what they do. And that kid is probably desperate for a few grand $$. He'll take the quick payout and it will be over. But first, the insurance company will do everything they can to make sure there is no loss altogether. Just file, tell the truth, and let them handle it.

    Don't say anything more to this guy. Don't worry about it. If he ever does sue, you'll be fine. Just get yourself a good attorney. But until then, I wouldn't worry too much.

    I've been threatened to be sued from employees and clients several times over the years. Not as much from clients. But there are a few crazies out there. If you do enough volume, you'll eventually run into some nut case customer who is impossible to please, an alcoholic, a bully or whatever and will threaten to sue you too. Out of the dozen or so times someone has said they were going to sue me, it has NEVER happened. Most of the time people are just talking a big game and then later they cool down or when they look into it and the attorney explains to them what the retainer will be or that they really don't have a case, they drop it. Unless you've done something really egregious, you normally don't have much to worry about.

    Don't talk to the kid anymore except to handle the claim form for the worker's comp. - if he still wants to pursue it. Any other negative comments or threats he has, just deflect them. If he threatens to sue, you say, "I understand. If that's what you feel you need to do, that's you're right." Don't do anything to make him more angry or feed the fire. You just maintain the upper hand, be the professional one, and I'm pretty sure you'll get through this just fine.
  2. HHlandscaping

    HHlandscaping LawnSite Member
    Messages: 173

    Red Shed You need to find some Latino Workers my friend !!!!!!!!
  3. JimLewis

    JimLewis LawnSite Fanatic
    Messages: 6,876

  4. SoCalLandscapeMgmt

    SoCalLandscapeMgmt LawnSite Silver Member
    Messages: 2,155

    "Latino" workers will still file fraudulent work comp claims. What you need are employees who aren't dirtbags.
  5. Red Shed Landscaping

    Red Shed Landscaping LawnSite Member
    Messages: 183

    Can you please send some of these guy my way. I seriously don't know where they are. The only ones I see around work at the Mexican restaurant or work for a few farmers that get paid cash and lots don't have licenses.
  6. JimLewis

    JimLewis LawnSite Fanatic
    Messages: 6,876

    Well, they MAY file claims. But I can tell you from a lot of experience having a lot of both Hispanics and Americans, it's the Americans who are WAY more prone to wanting to find an easy payday, not the Hispanics. Like 5x more likely.

    As for your problem not being able to find them in IA, that sucks. Around here that's pretty much the only people who will do landscaping work and there are entire cities here that are mostly Hispanic. HUGE part of the population. It's very hard to find Americans who will either a) do the work or b) actually have any experience doing the work. And 9.8 times out of 10 when we do hire an American (usually without much experience) just to give them a chance, they quit, stop showing up, or start working like a slug - within 10 days.
  7. DVS Hardscaper

    DVS Hardscaper LawnSite Fanatic
    Messages: 6,623

    Where then there you go!

    When you see these guys at the restaurant or the few farmers - then STOP and tell them you do "LANDSCAPING" and that you are looking for 1 to 2 guys. Give them you phone number and write "landscaping" on the paper. They will then have their cousins, brothers, uncles, or dads call you.

    Now, when you stop and chat with these guys - they most likely will speak little English. But they will understand the word "landscaping".

    And correct, they usually do not drive. Even my workers. You'll have to make changes to how you do things. It's going to be a major change to you, and you're going to be learning new things. You will need the right attitude to make it a success. You may have to pick them up and drop them off. I usually try to employ at least one guy with a car and license, and he is how they get to work.

    You will not get away with paying latinos less than Americans. That will back fire in your face. And you will need to keep them busy 40 hrs per week, year round. You keep these guys busy - you will have the best workers. If work slows down and they are not making money - they will leave you and they will do so without notice. They won't be mad, that's just their culture, they were not raised on the two week notice gig as us americans were. But they will arrive on time and they will work the entire day. For me, the less English they speak - the better. As the more English they speak - the more American bad habits they've picked up.

    I hired my first latino in 1997. I went to an apartment community and put up flyers that read "Landscape workers wanted" with the phone number". Yeah, the apt management wasn't happy about my flyers, but who cares, I got my workers.
  8. SoCalLandscapeMgmt

    SoCalLandscapeMgmt LawnSite Silver Member
    Messages: 2,155

    Ummm... no. That's not true either. ALL of my bogus work comp claims have been filed by Hispanic workers. Come to think of it, in 36 years I think we've probably had one white guy file a work comp claim. I don't think that many of you realize how completely different the Southern California landscape industry is from the rest of the country (maybe except for Texas). I'm not saying that white guys don't file claims but Hispanic guys definitely do.
  9. JimLewis

    JimLewis LawnSite Fanatic
    Messages: 6,876

    I've had a few of them file claims. But my guys usually prefer NOT to file a claim unless it's really a big injury. I always have to talk them into filing a claim. I find most of them just want to keep working and earn an honest day's wages. I have had maybe one in all these years that I felt was suspicious. Otherwise, in my experience, they have been way better workers than most American workers I've had over the years - in pretty much every respect.
  10. NuLifeLawnCare

    NuLifeLawnCare LawnSite Member
    Messages: 57

    Wow, I never knew you had to go through so much. I just fire them and go about my business. Your customers are smart people. They will know whats happening. What was he lifting that's was heavy his skirt so it didn't get caught in a mower. No offense ladies.

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