Hi everyone, a thought just occured to me and I was wondering if
anyone had any info on this subject. Lately I am thinking of things
that never even came up in all my time of doing business…it’s
wierd! I run a very small business out of my house and I am not
incorporated. I have one employee and my worry is that if she ever
hurt herself soldering, polishing, ect. that she could sue me. I
was wondering how people handle this with apprentices or running
small businesses. Should I be incorporated or have her sign a
disclousure? It honestly never occured to me before, but now I am
Regardless of disclosure forms, incorporation, etc… you are
required by law most places to carry workman’s compensation
insurance. Premiums are based on your payroll amount. If your
employee were injured in a work related incident, you could
potentially have your pants sued off of you, regardless of any forms
you may have had the employee sign. In fact, an attorney would make
use of these forms, as evidence in court, that you attempted to keep
from being liable by intentionally circumventing law. If your state
employment law requires workmans comp. , there are no forms that will
save your hindend. Dont make this mistake- you’ll be very, very sorry
if a scenario occurrs.
Depends on where you live/work but I’m pretty sure you should have
worker’s comp, liability and be paying payroll taxes or issuing a
1099 if they make over $1000 per year and can be considered a
If she is working in your facility, with your tools and materials,
she is, indeed, an employee and not a subcontractor so if you don’t
have worker’s compensation, you can get sued if she gets hurt and
the department of labor can get you in trouble whether she gets hurt
or not. As far as I know, it’s the law to have worker’s compensation
(a form of insurance) for any employees. Here in New York, you can
opt out of having it on yourself. We also have a pretty good program,
not very expensive, that pays a worker up to 75% of their salary if
they are out of work from getting hurt OFF the job. If I were you,
I’d go to the local department of labor and get some advice.
What you actually need is workmen’s compensation insurance. That
covers any injuries that might occur while she is on the job. Of
course this assumes that you can get it if you are working out of
your home. Talk to an insurance agent. Anyone can sue anyone in this
country for just about anything, so it wouldn’t necessarily prevent
you from being sued but it would cover you for any medical
Daniel R. Spirer, G.G.
Daniel R. Spirer Jewelers, LLC
1780 Massachusetts Ave.
Cambridge, MA 02140
Yes you can be sued, and she could take your house and all your
belongings if it went against you since you’re not insured and have
no protection under any type of corporate heading (ie llc, inc,
etc). You are not a seperate entity in the eyes of the law. Scrounge
up $50 bucks and go file a LLC form. Then get some kind of minimal
insurance plan to cover yourself. At least you will be protecting
things in your name. Anything that is the companies (purchsed) put
in the company name, ie get a company CC. You will have to do taxes
and employee stuff, etc… (unless she keeps working under the
Yes, of course you can get sued !. Anybody can sue anyone in
America, but that doesn’t necessarily mean that you would
automatically be found culpable for damages, real or imagined. On the
other hand, it takes time and money to defend yourself in court and,
therefore, you don’t want to unnecessarily expose yourself to
litigation. The issue of injury to an employee is a very serious
exposure in addition to a host of other potential grievances.
Workman’s compensation laws may vary from state to state, and
jurisdiction to jursidiction, but, considering the outrageous cost of
medical treatment, legal defense and insurance in America, a simple
injury to an employee could turn into a lifelong threat to your
financial well being.
If I were you I would immediately look into setting up your employee
as an independent contractor wherein that person does your work on a
piecework basis off premises. You might want to also provide that
person with some equipment on a loan or lease basis. The details of
this kind of arrangement should be reviewed by an attorney who is
competent in labor and tax laws. I don’t pretend to be competent in
any kind of law, but personal experience and the experiences of
friends have had suggests that you are well justified in concerning
yourself with these matters. Personally, I would do anything
possible to avoid hiring anybody for anything…too many things can
go wrong! Ron
Is your employee “official” (i.e., you’re paying her social security
and workman’s comp, taking out taxes, and reporting her salary)? If
so, your employment agreement with her should set forth specific
rights and responsibilities, including safety issues.
In any case, the workplace you provide for her should be compliant
with OSHA standards, including things like posted MSDS for all of the
chemicals, quick access to first aid, eye-wash, etc., appropriate
safety equipment (goggles, protective gear), good ventilation, etc.
You should ensure that your policy on workplace safety is explicitly
made known to her (a periodic review of your safety policy and
expectations isn’t a bad idea) and documented in writing. "Training"
her in safety techniques periodically isn’t a bad idea, either.
This may sound very “formal,” but it doesn’t have to be… it just
has to be done. Reminding her to wear the safety goggles when
polishing, if you see her without them, is appropriate.
That doesn’t mean that she CAN’T sue you if something happens, but
it does mean that her chances of winning a negligence case against
you go down significantly. A previous employer of mine had a policy
that all new employees had to sign on their first day. It said,
basically, “you have the right to sue us, but if you do you forfeit
your pension and our contribution to your 401(k).” To the best of
my knowledge, no one ever challenged them on that (a real catch-22
to do so), but I always wondered about the actual tenability of that
clause. And, it was definitely an indicator of the type of employer
they were - SOOOO glad I don’t work there anymore!
You would be responsible for compensation according to whatever the
workman’s comp laws are in your state. I’m not sure what you mean by
having her sign a “disclosure” , but I assume you mean a hold
harmless agreement. It would not do you any good in the event your
employee is injured. Likewise, incorporation would also be useless if
your intent is to circumvent the workman’s comp law. There is a dirty
little secret in the insurance business and that is that releases and
hold harmless agreements are not worth the paper they’re written on.
Those agreements are broken all the time. Workman’s comp is the
"sole remedy". That is, an injured employee 's right to recover is
restricted to the provisions of the workman’s comp act in your
state. You are liable. You need workman’s comp insurance. Having said
all that I suppose it’s conceiveable that in your state there is some
sort of exemption which would apply in your particular case, but I
sincerely doubt it.
Yes you can get sued. You can get sued whether or not your’e
incorporated. You also cannot simply have an employee sign a waiver
to avoid the risk. If you are working out of your home, the best
thing to do for starters is to talk to your insurance agent for
advice. Your insurance agent may be able to provide additional
insurance above and beyond your home owner’s insurance.
I have one employee and my worry is that if she ever hurt herself
soldering, polishing, ect. that she could sue me.
you might ask your attorney about setting up a worker’s compensation
account for her - that wouldn’t nail you as having a business at
home, more and more domestic helpers are asking for workman’s comp.
most injuries she could inflict upon herself - burns, scrapes, etc.
The real answer to this question is to speak with a small business
attorney, or even start at the local SBA office. You definitely need
to protect yourself by seperating your personal and “company” assets.
If an employee sues you due to an injury, their case will be much
stronger if they can show negligence on your part. Your case will be
stronger if you can show that you run a safe workplace and take care
to follow intelligent and standard safety practices. This is also
the most ethical way to work it. If someone gets hurt in a situation
that is supposed to be under your control, you have to take
responsibility. This is why you have to have workman=92s compensation
insurance. Being the boss means that you must insist that your
people follow safety rules and know the risks of what they are doing
so that they will not get hurt. A safety program will prevent injury,
but if it fails and someone does get hurt, the charge of negligence
will be harder to argue.
If an employee sues you due to an injury, their case will be much
stronger if they can show negligence on your part.
I beg to differ. Negligence in a workplace accident has nothing to
do with it. In a workman’s compensation case all the injured
employee has to show is that the injury " was in the course of and
arising out of, his/her employment". Workman’s comp. is then the
"sole remedy". That means they cannot sue the employer for damages
caused by negligence. . They must be compensated in acordance with
the workman’s compensation laws of the state. These laws lay down
the terms of settlement. They tell you how much you can collect for
a given injury. They set down disability limits. It’s not as if you
were hit by a car or slipped and fell on a water puddle on the floor
of some commercial establishment. The only place negligence can
enter the picture is when the injured party can show negligence on
the part of a third party. Let’s say they were injured by a buffer.
If the injured party can show that the manufacturer of the buffer
was negligent and that negligence was the cause of the claimant’s
injury, then they can recover from the manufacturer of the buffer in
a separate legal action, but not from the employer. They can
recover from the employer directly in the event said employer did
not have workman’s comp. insurance. Otherwise they recover from the
employer’s workman’s comp. insurance carrier. In my years as an
insurance adjuster here in Alaska that’s the way it was and I had
no reason to believe it was substantially different elsewhere.
I beg to differ. Negligence in a workplace accident has
nothing to do with it. In a workman's compensation case all the
injured employee has to show is that the injury " was in the course
of and arising out of, his/her employment". Workman's comp. is then
the "sole remedy". That means they cannot sue the employer for
damages caused by negligence
Well that’s good news. Thanks for clearing that up Jerry.
However, I will stick to my guns that you have a moral obligation to
do what you can to prevent injuries. Using the buffer as an example.
The employer should insist that anyone with long hair ties it back
every time and it is not negotiable. If an employee gets scalped by
the buffer, workmens comp will pay out, but it really should not have
happened and can be easily prevented. What you do about prevention
and how you react when someone is hurt can profoundly affect your
relations with your employees.
Two examples. Several years ago, an employee of mine put a graver
through her hand, only a few days after she had been shown how to use
it. I stopped what I was doing and insisted on taking her to the
emergency room. (She wanted to just put a bandaid on it)She also
thought she would probably be fired for being such a klutz. We gave
her some lighter duties for a few days until it healed. Also talked
about how that could have been prevented. We got a lot of loyalty
from her out of that experience.
Other example, my daughter was burned on a restaurant job earlier
this summer, shutting down the deep fryer. The shift supervisor was
annoyed that she was not still working when she ran cold water over
it for half an hour. She wanted to go to the ER but they told her not
to. She called her parents and we told her she MUST go to the ER and
make a workmens comp claim. She had 2nd degree burns the length of
her entire arm. Now she had worked at another restaurant where there
were special gloves used for the same job, so she knew that here
injury could have been prevented. But instead the boss was a real
jerk about it. A regional manager showed up for some other business
and was horrified at how the local manager had handled it. My
daughter was completely sour on the job and quit within about a week
of the injury. So the restaurant lost a good employee and the local
manager got in trouble with his boss because of how an injury was
handled. But it could have easily been prevented if they had the
right safety equipment in the first place.
Workmans comp is there so you can’t weasil out of taking care of the
cost of work related injuries. But that is not the end of it. Injured
workers often feel resentful or as employer you may feel guilty and
this can damage the quality of your employee relations. So do the
right thing and try to avoid injuries in the first place. It is in
your own best interest.
Personally, I would do anything possible to avoid hiring
anybody for anything.....too many things can go wrong! Ron
Pardon my saying, but I think that is an unfortunate attitude. That
said, you aren’t the first I’ve heard say that. I can appreciate
that the burden of managing and paying employees, and all the taxes
and paperwork that go with it, are a good reason to consider
carefully whether or not you really need employees. However, with
the market bearing down constantly on what we can get paid for our
work, we often must rely on greater volume to make enough money to
sustain ourselves and our businesses. And in running a business, there
is so much demand on your time dealing with customers and the
requirements of operations in general, that you can spend close to 40
hours a week doing that and then have to put in another 40 to get the
work done that you will actually charge for. So it’s often the best
solution to find people to help you, that you can delegate some of
the work to. And that involves a commitment of time and money. You
have to carefully weigh the investment with the returns. Sometimes I
wish I were still working alone, but if I think it through, I realize
that to do what I do now, it would be impossible to not have help.
If you’ve had problems hiring good people or keeping employees, you
really need to look at your own management skills to see where you
can make improvements. It’s a mistake to blame the problems on the
employees and miss the opportunity to correct the problem. I believe
the majority of employers understand and value the contributions of
their workers. On the other hand, I’m sure there are some of us who
are best off playing a solo. It’s just not a decision that should be
made without examination.