How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask socrateaser Your Own Question

socrateaser
socrateaser, Attorney
Category: Estate Law
Satisfied Customers: 33573
Experience:  Retired (mostly)
Type Your Estate Law Question Here...
socrateaser is online now
A new question is answered every 9 seconds

Hiring employees (nurses) - No Sue Waver

Customer Question

I've been hiring employees (nurses) to care for my spouse in our home for 18+ years. I'm in Florida - State law says I don't need Workers Compensation unless you have 4 or more employees - I have 2, never need more than 3. Tried to get WC anyway, many times - No company will ins us, to high risk with little return.. Same goes for trying to obtain Liability Insurance. I aleady have employes sign a waiver for WC just so they know I'm within the law by not providing it - this way I don't need to post it.. My question is: Can I get a waiver, covenant or contract created "basically stating can not sue" agreement and have new and existing employees sign it? Maybe yearly? Is this legal and binding? Thank you, BobK

Submitted: 9 months ago.
Category: Estate Law
Expert:  socrateaser replied 9 months ago.
Hello,

There is no law that prohibits you from obtaining an advance release from liability by a prospective employee. The problem is that if the employee sues, regardless of the agreement, there is a good chance that a court may not enforce the release.

The reason for this is that employers are generally considered to have overwhelmingly greater bargaining power in the terms and conditions of hiring. Consequently, the court could determine that the release is legally "unconscionable" (shockingly unfair), especially, if the employer is the actual cause of the employee's injuries.

The safer bet would be to lease your employees from a staffing agency, where the employee is not your employees but rather the staffing agency's employee. The additional cost would not be much greater than the cost of the insurance that you are having difficulty procuring.

In any event, to obtain a valid release, you would need to pay separate consideration to the prospective employee. Otherwise, it could be argued that you didn't actually contract for the release, but rather simply imposed it without offering anything in return, since you would be paying wages for the employee's actual labor. Example:

  • In consideration for payment of the sum of [amount], [employee name] ("Employee") hereby agrees to waive any right to sue for injuries sustained within the scope of Employee's employment by [employer name] ("Employer") as a [job description]. Employer and Employee further agree that the consideration paid herein, is separate and apart from any wages payable to Employee by Employer, and that Employee has no obligation to labor for Employer, and Employer has no obligation to employee Employee as the result of this waiver agreement.

  • Date: [date]
  • By: __________ (Employer)
  • [printed name, address, phone]
  • By: __________ (Employee)
  • [printed name, address, phone]

Please let me know if my answer is helpful, or if I can provide further clarification or assistance.

 

And, thanks for using justanswer.com!

Customer: replied 9 months ago.

Your answer about a court of law stating the waiver agreement is unfair was kind of what I expected.


 


As far as a staffing agency or nursing agency would be out of the question. They are terrible in our are location and hiring on our own solved all our problems of obtaining good nursing care. And present employees have been with us 9 & 4 years, so I wouldn't want to lose them.


 


Like I said, we already have waivers in place but they are not worded "in consideration for payment"


 


So if I changed the current wording for current employees and request they sign, what you typed reads like your saying I'd need to give them a substantial raise (as they are making 1-1/2 X nurses get paid through an agency as it is).


 


I don't know why this is bothering me after 18 years, I think it's just the fact every ins co has turned us down...


 


Would the waiver hold more weight if we added either party "employer and employee" waives the right to sue each other?


 


 


 

Expert:  socrateaser replied 9 months ago.
So if I changed the current wording for current employees and request they sign, what you typed reads like your saying I'd need to give them a substantial raise (as they are making 1-1/2 X nurses get paid through an agency as it is).

A: You can't give the employee a raise, as consideration for the waiver. That would be future consideration, for labor not yet performed -- not in exchange for the waiver. You would have to actually pay the employee a nontrivial amount of money in a lump sum (e.g., $500). And, the employee would have to accept the amount offered and sign the waiver.

I don't know why this is bothering me after 18 years, I think it's just the fact every ins co has turned us down.

A: I understand. I don't have a good answer for this one. It seems a bit ridiculous that no one wants to insure -- but it is what it is.

Would the waiver hold more weight if we added either party "employer and employee" waives the right to sue each other?


A: No (not in my opinion, anyway) -- because you have the far greater bargaining power. You're not really giving anything of value to the employee, by your agreement to not sue the employee.

Hope this helps.
socrateaser, Attorney
Category: Estate Law
Satisfied Customers: 33573
Experience: Retired (mostly)
socrateaser and 3 other Estate Law Specialists are ready to help you
Customer: replied 9 months ago.

All ins co say basically the same thing..


 


With 2-3 employees their premium would never cover an injury or attorney if needed --


 


And insuring against Home nurses is considered high risk --


 


Thank you for your help, gives me something to think about,


 


BobK

Expert:  socrateaser replied 9 months ago.
You're welcome and good luck!

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • My husband has been driving me insane with questions regarding estate issues since his mother died. I'm not a lawyer! Thanks to JustAnswer, I was able to calm his concerns. Loretta T Illinois
< Last | Next >
  • My husband has been driving me insane with questions regarding estate issues since his mother died. I'm not a lawyer! Thanks to JustAnswer, I was able to calm his concerns. Loretta T Illinois
  • Thanks Adam!! - A very direct and understandable response - you have been a great help! Happy Customer Ellicott City, MD
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
 
 
 

Meet The Experts:

 
 
 
  • Thomas McJD

    Attorney

    Satisfied Customers:

    3076
    Wills, Trusts, Probate & other Estate Matters
< Last | Next >
  • http://ww2.justanswer.com/uploads/MC/mclemorelawyer/2011-9-21_193631_IMGP8718Version2.64x64.jpg Thomas McJD's Avatar

    Thomas McJD

    Attorney

    Satisfied Customers:

    3076
    Wills, Trusts, Probate & other Estate Matters
  • http://ww2.justanswer.com/uploads/NY/nyclawyer/2012-6-7_22011_photo66139201112041.64x64.jpg Infolawyer's Avatar

    Infolawyer

    Attorney

    Satisfied Customers:

    3781
    Licensed attorney helping individuals and businesses.
  • http://ww2.justanswer.com/uploads/BA/barristerinky/2012-6-10_22423_office.64x64.jpg Barrister's Avatar

    Barrister

    Attorney

    Satisfied Customers:

    2188
    13 yrs estate law, real estate. Wills/Trusts/Probate
  • http://ww2.justanswer.com/uploads/RA/rayanswers/2012-6-7_23346_Untitled1.64x64.jpg RayAnswers's Avatar

    RayAnswers

    Attorney

    Satisfied Customers:

    1484
    Texas lawyer for 29 years in Estate law
  • http://ww2.justanswer.com/uploads/RO/RobertJDFL/2012-6-6_175352_7538220120606.64x64.jpg RobertJDFL's Avatar

    RobertJDFL

    Attorney

    Satisfied Customers:

    1226
    Experienced in multiple areas of the law.
  • http://ww2.justanswer.com/uploads/PH/philip.simmons/2012-6-7_161915_BIGPhilipSimmons.64x64.jpg P. Simmons's Avatar

    P. Simmons

    Attorney

    Satisfied Customers:

    770
    12+ yrs. of experience including estate law.
  • http://ww2.justanswer.com/uploads/RA/ratioscripta/2012-6-13_2955_foto3.64x64.jpg Ely's Avatar

    Ely

    Counselor at Law

    Satisfied Customers:

    754
    Fully licensed attorney in Texas in private practice.