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How do I fire a Live-In Aid?

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BL1

Junior Member
What is the name of your state? California

I have had a girl living with my disabled daughter for about 10 months. She has taken more vacation time than I would have liked. All totaled, she was gone about 7 weeks. I would like to fire her, but I don't know if I will be breaking any laws to do so. She has been good to my daughter in may ways, but she just takes off for anywhere from 5 - 7 days at a time. We have had a "trade" agreement with her. She pays no rent or utilities and in exchange, she was supposed to look after my daughter, cook a little, clean a little and run some errands. The market rate for the condo is about $800/mo so the way I look at it, she has cheated us by being gone so much. How do I get rid of her without breaking the law? Can I just ask her nicely to be out in a few days? She has already given her notice and wants to stay until May 20th, but she has already scheduled 11 days of that time in Florida and elsewhere. I feel really taken advantage of, but I am reluctant to tell her to be out now because I'm afraid she will sue me or send the police or something. What shall I do?:confused:
 


pattytx

Senior Member
Your post brings up a lot of questions regarding taxes, etc., but I take it you were paying her as an independent contractor? Did you have a contract/legal agreement outlining the terms of discharge (you should have)? Other than that, you say "You're fired". :eek: You can give her a few days to get her belongings out of your property; I'd say 3 days would be appropriate.
 
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eerelations

Senior Member
Also, keep this in mind for the next one - employers are under no legal obligation whatsoever to allow their employees to take any vacation time, ever.
 

tranquility

Senior Member
My goodness, where to start? I think the OP has almost assuredly dug a hole that is goinig to be hard to undig. When it is asked, "How do I get rid of her without breaking the law?", I might reply, why are you worried about that now?

There has been a creation of a complex relationship with many legal duties and resposibilities from each party in the arraingment. How to unwind that is going to take a lot more facts. That the OP feels she can fire the worker makes me think employee and not independant contractor. That is the first issue.

Other questions come to mind too. A whole bunch are related to the answer to the employee/IC question. On a strict analysis, the worker would be classified as an employee although I think the customs and practices of the industry may be a safe harbor. One thing I might suggest is to file some 1099s for the value of the condo for past years to protect any possibility of arguing IC status.

How was the condo treated on the taxes from the OPs perspective? I hope it was as a second home (Or, primary residence of the daughter.) rather than a rental. If a rental, the "receipts" should have included the value of the bartering. Also, CA has some specific rules to the reduced rate rental of apartments for apartment managers. If one were to read up on the requirements, at the very least I would expect this situation would meet those requirements.

I suggest the OP see an attorney. While bad things probably won't happen, bad things very well could happen if the worker gets in a snit. A few hundred dollars now could save thousands, or tens of thousands in the future. I know this happens all the time and the OP may have thought nothing of it, but casual treatment of such a relationship through winks and smiles can really hurt you years down the line.
 

Beth3

Senior Member
She has already given her notice and wants to stay until May 20th, but she has already scheduled 11 days of that time in Florida and elsewhere.

Just tell her that you're accepting her resignation immediately.

I feel really taken advantage of, but I am reluctant to tell her to be out now because I'm afraid she will sue me or send the police or something. Sue or send the police? It's YOUR home - if you tell her to leave and she refuses, then she's tresspassing and YOU call the police.

Any laws that have been broken would be in the nature of tax withholding you should have been doing but you can bet she's not declaring any taxable income (the value of the free rent, utilities, food, etc.) so I wouldn't worry about it.
 

tranquility

Senior Member
BL1, Patty's info is correct and Tranquility's is not.
Which part? I agree Patty's info is correct, but it is incomplete. If the person was an "employee" rather than an independent contractor (making the firing of her easy), what are the odds to OP has treated the "employee" properly? Was there a withholding on the bartered amount? Was there income tax paid by both parties for the value of the services (less the cost)? Was their unemployment taxes paid? Was the household employee reported properly on the schedule H or, in the alternative, payroll tax reports? (And, the proper amount of trust fund taxes paid over.) Was this regular and substantial employee covered by worker's comp as required by law? Was the I-9 filled out and kept? Was the employee or contractor reported to the state as required when the amounts exceeded a certain level?

Every thing of the wink, wink, nod, nod relationship falls apart if the employee/IC goes to collect unemployment once she is fired. I've seen it happen twice in just such a situation. Investigation starts and the government crashes down on the head of the employer. I think the OP has a problem becase the person can be fired as she is probably an employee. Personally, I'd play nice with her and hope the problem just goes away.

Info edit:
If an independent contractor, we have the issue of when we can get rid of her. Also, we don't have an employment relationship with the condo--therefore she can't be simply told to leave but must be properly asked to leave. (What that means would require more facts about the tennant/landlord relationship.)

Either way, there are problems that a wise person would want to see an attorney about.
 
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BL1

Junior Member
Thanks for your helpful replys

She has already given her notice and wants to stay until May 20th, but she has already scheduled 11 days of that time in Florida and elsewhere.

Just tell her that you're accepting her resignation immediately.

I feel really taken advantage of, but I am reluctant to tell her to be out now because I'm afraid she will sue me or send the police or something. Sue or send the police? It's YOUR home - if you tell her to leave and she refuses, then she's tresspassing and YOU call the police.

Any laws that have been broken would be in the nature of tax withholding you should have been doing but you can bet she's not declaring any taxable income (the value of the free rent, utilities, food, etc.) so I wouldn't worry about it.

Thanks for this info. I consulted with a consumer advocate and she said that the roommate is considered a tennant after 6 months (This girl has been there since July 1). I can ask her to vacate, but she may dig in her heels and refuse to go. The police could be called to "ASK HER TO GO", but they can't make her vacate. This advocate said that I may have a fight on my hands and she cited a case where a live in aid wouldn't leave a private home and they were forced to get a restraining order followed by a eviction notice. They finally got her out. She was doing drugs, etc. and not taking proper care of their son. I just wanted to know my rights and what laws might be on MY side in this kind of a situation. It is my property and my daughter is not being properly cared for when she ups and leaves town. I think that should be reason enough to get her out, but maybe the law is on the side of the tennant.
 

eerelations

Senior Member
The advisors on this forum are experts in employment law, and possibly not landlord/tenant law. I reco you pose your tenant questions to someone in the "Landlord/Tenant Issues" section of the Real Estate Law forum on this site.

Regarding your employment law issues, you had the legal right to fire this person the minute she "got up and went" on her first vacation - and you still have that legal right. I reco you fire her immediately, and if she still has the right to live in the condo (see what the advisors in the landlord/tenant forum have to say about this), then so be it, do what you have to do legally to get her out, and meanwhile hire someone else to take her place caring for your daughter. In other words, treat the employment issue and the tenancy issue as completely separate issues.
 

Gadfly

Senior Member
I know it will cost you, but please consider using a professional agency in the future. That resolves bunches of these issues including liability if the person is injured on the job.
 

tranquility

Senior Member
I think most everyone on the fourm believes the worker is an employee and the OP has the right to fire her at will. The problem eerelations fails to consider for some reason is that if the worker is an employee, the OP has almost assuredly broke many tax and employer laws related to the relationship. I mentioned only a few in a previous post. The question is, what to do?

Firing a person tends to anger them. While the worker propably has some problems in how she reported and did things as an "employee", the OP has far greater problems if thing get nasty.

Why let things get nasty?
 

eerelations

Senior Member
Tranquility, Beth3 has already answered your question, I don't see why I have to be slammed for not bothering to do so.
 

tranquility

Senior Member
Because I am of the opinion that telling the worker to leave immediately, while within the rights of the OP to do so, increases the chance there will be expensive problems down the line.

Telling the worker to leave now or letting the worker stay to the time she has given notice don't really change the legal situation for the OP. She is in the wrong not matter what and the legal question doesn't change if the worker is fired or allowed to leave. The real question is which path will make it more likely for the worker to cause the OP problems?
 

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