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LADYLAWYER
LADYLAWYER, Lawyer
Category: Legal
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Experience:  Civil; Family; HOA; Landlord/Tenant; Real Estate; Probate; Insurance; Immigration; Wills & Trusts
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I hired live-in caregiver for my motherin May, 2012. Her pay

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I hired live-in caregiver for my motherin May, 2012. Her pay was 2k/mon, two rooms for her and her daughter, utilities, cable, and internet. The arrangment did not work out, and I terminated her because of a number of serious ongoing infractions, and neglect that ultimately led to the injury of my mother. I gave her a letter of termination in March 2013, and 30 days to vacate the the premises. She is refusing to leave, and has sent a letter from her attorney stating that I "terminated her employment without proper notice, and ordered her to vacate the residence immediately..." The position taken is that if I pay $5k to the woman, that they won’t turn me into the Department of Labor, Wage and Hour Division "seeking an investigation of violations of the law with regard to maximum hours per week, rates payable for overtime, failure to provide w-2 withholding taxes for an employer which services are under the control of the employer and illegal withholding of the final paycheck." The woman had told me she worked as a CPA prior to a drug arrest earlier in her life, and that the agreement to pay her, and her handling her own taxes would be fine for her. The ending paragraph by this lawyer states that "I do not allow people to abuse my fragile clients and you will find that working with me will be most unsatisfactory and unenjoyable if we are unable to reach an immediate conclusion by settlement. I promise you that I shall protect ..... to the fullest extent provided by law." Can you offer advice on whether I have broken any labor laws? My Mother will be discharged in mid May, and I have a real RN who will be moving in to take care of her- But she will not be able to come home until the woman is gone. I am seeking a Writ of Possession to get this woman out of the house- but now feel frightened by the threats. Can you advise?
Submitted: 1 year ago.
Category: Legal
Expert:  LADYLAWYER replied 1 year ago.

Hello,
Thanks for choosing Justanswer.com! I look forward to helping you with legal information today.

Have you verified that this attorney exists and that he represents this woman? Were you paying taxes and doing everything you needed to with regard to this woman's employment? What do you mean by a Writ of Possession? Do you mean that you are seeking to evict her? Have you considered an Order of Protection (restraining order)? Lastly, is your mother mentally competent?

Thanks!

Customer: replied 1 year ago.

The woman told me that she would do her own taxes (W-9) so I did not. I took her at her word. I asked her if she needed anything, and she said "no, that she would be doing her own taxes", so I wouldn't need to withhold for her- which is something I didn't know how to do and she led me to believe that she would be handling that. Now I see she just wanted the gross income. My mother has not been officially been deemed mentally incompetent, but has sunk into a senility state while in the hospital. They say that is normal. I am her POA. I never rented to this woman. Her and her daughter living there was part of her pay. She is refusing to leave. The lawyer is real. Would you like me to copy and send the letter?

Expert:  LADYLAWYER replied 1 year ago.

That is okay, I do not need the letter. I just wanted to make sure this woman was not conning you into thinking she had legal representation when she did not. Basically, what this attorney is doing is extortion. They cannot ask for a settlement in lieu of not reporting you to the authorities. In any case, the attorney is just posturing and you don't have anything to be concerned about criminally. That isn't to say this woman will not try to sue you for breach of contract or some other ridiculous thing, but you don't need to be worried about the Department of Labor, etc. Even if they open up a complaint and these agencies investigate, it will not go anywhere. You do need to know that even if this woman and her daughter were living there as part of her income, they are considered tenants under the law and you will have to evict them if they refuse to leave. If you gave them a proper Notice to Quit and they did not leave by the specified date (these notices MUST be proper under the law), then you can go down to the court house and file an unlawful detainer action. OR, because your mother is there and the situation has the potential to be very volatile, you may want to seek an order of protection against this woman on behalf of your mother. If granted, the sheriff will serve this woman with the Order and physically remove her from the home right away. To file for the Order of Protection, you just need to go down to the local court house in the county where your mom resides. For the eviction, you will also go down to the court house and ask for the appropriate forms. You can try the Order of Protection first and if that is not granted, then you can file for eviction. I wouldn't even respond to the attorney at this point. If you have any further questions about this, I am most happy to keep assisting you! Please just let me know how I can help you further. If not, I hope I have provided you with excellent customer service today and that your rating will reflect that. Thanks!

Customer: replied 1 year ago.

I just want to make sure...


the lawyer also stated that I withheld the final paycheck. Which I did not- but I did allow her to work 2 weeks, not with my mother who was in the hospital, but I gave her the option of cleaning for 500.00 a week (her reg. pay) and that because of prior behavior, she was told I would check every 3 days and pay her when she finished.


She wanted the pay before she did any work. I told her that I would pay her when she did something, and that she was no longer getting paid for living in the home.


Also He said I have "allegedly been defaming .....and making false remarks about the way she treated your mother"


and that "I have been involved in these wage and hour claims and they are ugly and often have very expensive outcomes for the employer."


Is this just to scare me?


Your answer has made me feel much better, but I just wanted to say it all and make absolute certain. And yes, it sounds like extortion to me.

Expert:  LADYLAWYER replied 1 year ago.

Hi again :) Happy to keep assisting you! All they can do is file a civil lawsuit against you asking for the pay that she thinks she is owed. They might file a defamation claim too if you are indeed saying FALSE or INACCURATE things to third parties in order to damage this lady's reputation, but if what you are saying is TURE, then that is an absolute defense to any defamation claim. The other thing they may file for is breach of contract, but you have every right to terminate someone who is not doing what you hired them to do. I don't know what your contract with her looks like, but in the future, if you plan to have someone live in the house and help your mom, I would get an attorney to draw up an ironclad contract for you. It is worth the little bit you would spend now to have protection later.

You need not pay anyone for work they didn't do. If she wants to try to sue for the money, she will have to prove she did the work if you say she didn't and I don't think she can do that.

BotXXXXX XXXXXne, the letter was to scare you into a settlement. The attorney gets paid by her regardless of whether you settle or not. So it was pretty easy to type up a demand letter with a lot of threats. Fact is, none of the claims would stand up in court, although you might have to pay an attorney to defend you if you do get sued. So yes, sometimes even defending frivolous claims can be expensive.

LADYLAWYER, Lawyer
Category: Legal
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Experience: Civil; Family; HOA; Landlord/Tenant; Real Estate; Probate; Insurance; Immigration; Wills & Trusts
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