R.M. from Hartford County, Connecticut writes:
Dear Mister Condo,
Our complex has an unregistered, unlicensed person who has been working alongside a full-time benefitted maintenance employee of the association. The complex has a Worker’s Compensation policy. The helper is here every day, doing basic carpentry, repairs, maintenance, also cleaning, etc., alongside the maintenance employee, and under direction of the board or property manager. The board said they can’t afford a “regular” contractor, that the rate is unaffordable. I asked the insurance agency for our master policy and was told our Worker’s Comp policy would cover the helper via when the complex files a 1099 on the helper. (But I heard the helper is getting paid under the table so most likely no 1099 and would be under the radar.) But even if there is a 1099 filed on the helper, I asked the insurance agency about general liability and was told it depends on the policy. I am aware that the helper is most likely misclassified as an independent contractor in order to not pay into unemployment, etc., and I realize there are tests to determine status via IRS, Dept of Labor, etc., since he is working under direction, and works a regular day, not doing individual jobs by a contract, works just like the actual employee and fills in for him when the regular worker is out. Unit owners asked at a meeting about this helper, and were given a choice that if we want a “regular” worker such as (and named a contractor business and their rate), the board would have to raise our fees, so people then went quiet, and although there may be some concerns, nobody knows what to do, even how to find out if it is an inappropriate liability if there is an injury to himself or to others from his labor, or not. He is almost always on ladders (outside and inside), on the roofs, working with a chainsaw, etc., and he is retired with a handicap tag, and limps, so don’t know about his doing some of these tasks. Also, some work the helper did needs to be redone by a “regular” contractor and I notice they do not go after the helper (as a “contractor” for the faulty work, now we have to pay twice, or even worse, the complex is not repairing faulty work and it is considerable. People are way too intimidated to confront the board because nobody knows what to do. I’m aware an answer can be to replace people on the board, but at this point, most owners don’t attend meetings and there have been no minutes for almost a year and most discussions are done in executive session and e-votes, and we have not received any notice of the e-votes done in over a year.
Mister Condo replies:
R.M., this is a most disturbing question you have brought me. I am not an attorney and offer no legal advice in this column. That being said, you have a Board that has decided to play fast and loose with liability for the association. Their intentions may be good (to save money) but the potential for a lawsuit that they have placed on the association is astounding. It is outrageous to think that an unlicensed and uninsured handyman is employed by the association. That they further don’t have this person properly insured is pure liability if and when they get injured or cause injury to someone else. You have mentioned that the membership doesn’t seem to care at this time and that may be true. I guarantee you that when the association is named in a lawsuit and there is no insurance coverage to indemnify the association, they will most certainly care. You need a legal opinion on the risk so that the Board can make an informed decision. If they get sued, claiming ignorance will not indemnify them. In fact, it may exacerbate the situation. Of course, it is possible that this individual may never have an accident and no one would ever be the wiser but just one mistake and this house of cards will crumble and the results will be disastrous. Good luck!