California Employment Law

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California Employment Law
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we have a full time live in caregiver for my mother who is

in Hospice. she has...
we have a full time live in caregiver for my mother who is in Hospice. she has been living in my mothers home for more than a year. Room and board is provided and a monthly pay. We are not happy with the attitude she is serving to my mother who is dying. (Nor to my brother or myself, the hospice nurses, etc.) she does not tell the truth and she is disrespectful. We have had many talks with her about her attitude.

WE want to terminate her employment and evict her. We are willing to offer monetary incentive to get her to leave sooner rather than later (we are afraid that she will harrass our mother as she will be very angry).

so once we serve her notice, we do not want her to do her duties any more- nor be paid. We would like to offer her money to leave faster so the new caregiver can move in.

What do we need to know. This is California.
thakyou
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Answered in 19 minutes by:
7/6/2012
socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 39,498
Experience: Retired
Verified
Hello,

For clarification purposes, are you currently paying the caregiver according to the regular payroll requirements (i.e., paying FICA, umemployment, workers' compensation, SDI, etc.)?

Thanks in advance.
Ask Your Own California Employment Law Question
Customer reply replied 5 years ago
yes we are.
Then, assuming that you do not have a written contract that contains a future termination date of employment more than one month after the commencement date of the contract, then the caregiver is an "at will" employee, and you can terminate the employee with only one day's notice.

Concerning the meals and lodging agreement, if the agreement is part of the employment relationship, and there is no independent rental lease, then the lodging terminates with the employment, and the employee must vacate immediately.

If the employee does not vacate immediately, then you can immediately file a lawsuit for unlawful detainer and once you obtain judgment, the sheriff will remove the former employee.

You cannot, however, physically remove the former employee on your own. If you attempt to do so and the employee calls the police/sheriff, you will be arrested for breach of the peace.

All of this can get extremely messy and very expensive. A landlord-tenant attorney will cost you at least $5,000 to force the employee to move, and this is not small claims court. Unlawful detainer court is complicated.

So, you may want to tell the employee that things are not working out, and that if he/she vacates the premises by day X (maybe two weeks), you will continue to pay wages up until that date. The reason for this is that by paying wages, you will avoid having the employee found to be a tenant, which can make it even more expensive to remove him/her. Ideally, you want wages and the living arrangment to end on the same day.

Hope this helps.

NOTICE: My goal here is to entertain while educating the public about the law. I hope my answer is useful and informative to you. During our conversation, the website may ask you to rate my answer. If you rate my answer lower than the middle rating, then the website retains your entire payment, and I receive nothing. It is entirely your choice as to how you rate my answer. However, because your payment to me is in the nature of a donation/gift, rather than as compensation for any services rendered, you are entitled to know how your rating affects the final distribution of your donation.

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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 39,498
Experience: Retired
Verified
socrateaser and 87 other California Employment Law Specialists are ready to help you
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Customer reply replied 5 years ago
,to Socrateaser:

May I continue to ask questions fro 7 days free of additional charges?
Ironically, you have asked the one question that I cannot answer.

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Ask Your Own California Employment Law Question
Customer reply replied 5 years ago
to Socrateaser

Ha ha. I just called them. I am on a free 7 day trial. (what a deal) sheesh.so I can ask away for 7 days and be charged after that. I thank you for your honesty. so I may write you alot over the coming days !


I am very scared this woman is going to sue us. she is vindictive. she is the type to say the job caused her "back pain or side pain or arm pain" etc..... ugh.


I live in TX - and have a friend who is an attorney ... here. Can she file the lawsuit for unlawful detainer or must this be a CA attorney? If the sheriff came to remove the person, she has so much shit in that garage (brought this without telling me) that not sure how they get all the stuff out? Does the sheriff move it? She is going to freak.


We will absolutely take your advice on continuing her wages (to continue her employment thus not a "tenant" - perfect. Not sure if we should also offer incentive to leave soon and without fuss?
I am very scared this woman is going to sue us. she is vindictive. she is the type to say the job caused her "back pain or side pain or arm pain" etc..... ugh.

A: The only way to avoid that is to get a settlement and release from her. And, that means paying her something in exchange for her agreement not to sue. A properly drawn agreement is fairly complicated. I can give you a sample (but it will cost ya!) -- I can't promise it will suit your exactl purposes, though.

I live in TX - and have a friend who is an attorney ... here. Can she file the lawsuit for unlawful detainer or must this be a CA attorney?

A: Must be a member of the State Bar of California. No exceptions.

If the sheriff came to remove the person, she has so much shit in that garage (brought this without telling me) that not sure how they get all the stuff out? Does the sheriff move it?

A: No. You get to move it. And, you can't just dump it on the street, because you will be charged with creating a public nuisance. You would have to get a self-service storage unit, pay for a month's rent, move the stuff there, and give the employee the key or combination to the unit, and then it's her problem to pay the rent or lose the stuff.

We will absolutely take your advice on continuing her wages (to continue her employment thus not a "tenant" - perfect. Not sure if we should also offer incentive to leave soon and without fuss?

A: I can't tell you what to do. All I do is explain the legal ramifications of your actions. If you have to hire a California lawyer to evict, it will cost you at least $2,500 -- maybe more if the employee kicks up a fuss. So, there is definitely some wiggle room for you to offer money to go quietly ("cash for keys").

Of course, you can try to do-it-yourself the eviction and represent yourself in court. But, if you are not actually on title to the property, then you can't represent your mother in court. You will have to hire a lawyer -- so, that's the argument for offering money to get the employee to move out quietly.

Hope this helps.

NOTICE: My goal here is to entertain while educating the public about the law. I hope my answer is useful and informative to you. During our conversation, the website may ask you to rate my answer. If you rate my answer lower than the middle rating, then the website retains your entire payment, and I receive nothing. It is entirely your choice as to how you rate my answer. However, because your payment to me is in the nature of a donation/gift, rather than as compensation for any services rendered, you are entitled to know how your rating affects the final distribution of your donation.

If you need to contact me again, please put my user id at the beginning of your question ("To Socrateaser"), and the system will send me an alert. Please Click the following link for IMPORTANT LEGAL INFORMATION. Thanks and best wishes!

Ask Your Own California Employment Law Question
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socrateaser
socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 39,498
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