Breach of contract?

[lei_sah]

What is the name of your state? Pennsylvania

My husband did about 50 hours of website and network/PC maintenance work (at $40 an hour) for a modeling agency over a three-month period last year. A contract was signed by my husband and the owner of the agency stating that my husband would post updates to the website within a week of the update being received from the agency by him (the contract does not state what action may be taken should this occur). On two or three occasions, because of time constraints, website updates were posted on the ninth or tenth day after he received them. When my husband billed the agency after three months, the owner refused to pay him for any of the work, saying that because some of the work was late, my husband had breached the contract and she did not owe him anything for any of the work he had done.

My husband is suing her for the $2000 she was billed. He completely redesigned her site (which has now taken down due to non-payment - the contract stated that he could do this if she defaulted), and spent many hours cleaning her network of viruses and spyware. And the updates *were* posted, even if they were two or three days late. Can she argue that because some of the work was late, she does not owe my husband anything?

 

[tijerin]

Can she argue that because some of the work was late, she does not owe my husband anything?

She can "argue" anything she likes. It will still be up to the judge to determine whether she has to pay you or not.

Has your husband contacted your state's labor department? They "may" consider this money "wages" and intervene on his behalf.

 

[JETX]

Has your husband contacted your state's labor department? They "may" consider this money "wages" and intervene on his behalf.

The work was very clearly done under a separate contract.... making him either an 'independent contractor' or vendor.
As such, the labor department has nothing to do with this.

 

[JETX]

Can she argue that because some of the work was late, she does not owe my husband anything?

Depends on the contract.... and as correctly noted, the courts interpretation.

Generally, his failure to perform on a part of the contract (and your post shows that to be the case), will not void the entire contract. In my opinion, he is due payment for the work that he did in compliance..... with some 'adjustment' for the work that was not completed in a timely manner.

 

[tijerin]

What is the name of your state? Pennsylvania

My husband did about 50 hours of website and network/PC maintenance work (at $40 an hour) for a modeling agency over a three-month period last year.

The work was very clearly done under a separate contract.... making him either an 'independent contractor' or vendor.
As such, the labor department has nothing to do with this.

Your state "may" consider him to be an "employee" regardless of the existence of a contract and/or the designation as an "independent contractor" by the "employer". If he is not considered to be an independent contractor, then the Pennsylvania Department of Labor and Industry will help him recover his lost "wages".

The "employer" would have to prove that NEITHER of the following two conditions applied in this matter to the Department of Labor & Industry (if your husband filed a complaint) before the Department of Labor & Industry would consider him an "independent contractor". (ie. if any one condition applies (or both) than your husband is an employee)

1. "The individual is customarily engaged in an independently established trade, occupation, profession or business."

Does he do web design/computer work for a full-time living and/or consistently enough that a reasonable person would consider this an "established trade, occupation, profession or business"

2. "The individual must be free from control or direction over the performance of the services involved".

You may be able to establish that the "employer" exerted "control or direction for services performed" (ie. employer said the work must be done every week by this time, employer "directed" your husband's creation of the website, et al.)

Read below:

"It is important that all employers doing business within the Commonwealth of Pennsylvania understand that, under the Pennsylvania Unemployment Compensation (UC) Law, for both benefit and tax purposes, the term “employee” applies to every individual who is performing or has performed services for which he/she is or has been paid by an employer. Unless specifically excluded from coverage, all work for which wages are paid under any contract of hire, express or implied, written or oral, is covered by the UC Law.

Services performed by a worker will be exempt under the benefit and taxing provisions of the UC Law if the individual is, in fact, an “independent contractor.” In order to be excluded from coverage, the person who performs the services must meet two conditions pursuant to Section 4(l)(2)(B):

The individual must be free from control or direction over the performance of the services involved, and

The individual is customarily engaged in an independently established trade, occupation, profession or business.

Only if both of these conditions are met to the satisfaction of the Department will the relationship be regarded as an “independent contractor.” Unless and until those criteria are met, the services will be “employment” subject to the coverage of the UC Law.

The following items are not conclusive in determining “independent contractor” status:

Employer designation, either verbally or in writing, that an individual is an “independent contractor”;

Statement by an individual that they are an “independent* contractor”;

Issuance of a Federal Form 1099."

http://www.dli.state.pa.us/landi/cwp/view.asp?a=152&q=205089

If the first two conditions DO apply to your husband (ie. he would be considered an independent contractor) then I would submit that what JetX said would apply (ie. adjusted contract amount due)

If they don't apply, (ie. he would considered to be an employee) then not only will they help you get your "lost wages" back, but he could qualify for unemployment benefits (depending on his current work status).

Good Luck!