I own a fitness gym. A sub-contract employee moved the machines without my knowledge and did considerable damage to a completely refinished tile floor. Where does the liability lie and why? Any court cases cited would be great!

A employee of a contractor, working for another contractor?

What was their job function ?

What insurance do you require the contractors to carry to work for you ?

Not enough info as to what was gong on,

Somebody (your employee, contractor, or whatever) moved your machines without your permission and, in so doing, did considerable damage to your floor. Without knowing anthing else, it seems that there is clear-cut liability on this person's part. The person's employer (a "subcontractor" of yours?) would also be liable if the employee moved the machines in the course and scope of his/her employment with the "subcontractor). Tell us something that might change this answer.

So this person works for your sub contractor, who is the general contractor?

This person operates our front desk. It is common practice to hire trainers for a small gym in a sub-contractual relationship. This person moved the machines around right after we had the floor completely re-finished. I was gone for two weeks and in that expanse of time she worked some overtime. When I came back and discovered what she had done- I decided I would not pay her the overtime- because of the damage to the floor which I considered her responsibility. She then went and filed small claims for her overtime pay. The floor repair will be substantially more than what I owed her for overtime. Any further ideas are welcome.

In NY you cannot withhold salary/pay/commission in exchange for something else, such as damages. These are separate issues. Countersue for the damage to the floor.

I guess I will settle this on Judge Joe Brown.

I always liked Judge Judy better

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Originally Posted by mikey401

I own a fitness gym. A sub-contract employee moved the machines

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Hello mikey:

Given the title of your question, it's no surprise that my colleagues were mislead.

The truth of the matter is, this person worked for nobody else but YOU. Consequently, and in spite of the "common practice", this person IS an employee, and there's NOBODY to sue. IF the person wasn't trained properly, that's on you.

excon

Quote:

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Originally Posted by excon

Hello mikey:

Given the title of your question, it's no surprise that my colleagues were mislead.

The truth of the matter is, this person worked for nobody else but YOU. Consequently, and in spite of the "common practice", this person IS an employee, and there's NOBODY to sue. IF the person wasn't trained properly, that's on you.

excon

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Great Catch semi-Attorney Excon! Yes, this person is EITHER an employee or a subcontractor. I read back, saw the blurb about unpaid overtime. My vote is that this person is an employee.

Not saying that employee can't be sued for damages done but I agree, that would be a BIG uphill fight. Employer is responsible for training, supervising, preventing "things" like this from happening.

Again - good catch and shame on me.

I agree, this person is not a sub and is an employee. You put yourself in a bad position by withholding OT, labor law violation which is much worse than a scratched floor. Pay the money, dismiss if you want. You can try to sue but with this info in court I think a judge will not be on your side. If she files an EEOC complaint your will be evn worse off.