Tuesday, January 12, 2010

Contractor Liability for Unlicensed Subcontractors

As if owning and managing a construction business on a daily basis wasn’t challenging enough, especially given the economic headwinds in recent times, contractors must be aware of the potential liability which arises from doing business with unlicensed subcontractors. In summary fashion I’ll highlight the more important facts/points of a case which illustrates the potential pitfall.

The case of Sanders Construction Company, Inc. v. Martin Cerda [And five other cases] is important because it further established and maintained the liability of a General Contractor for the unpaid wages of his/her unlicensed subcontractors. The following summarizes the basic facts which were not in dispute:

  • In September 2006 disputes arose regarding the quality of the subcontractor’s work

  • After Sanders discovered the subcontractor’s license had expired prior to June 2006, Sanders continued to work with the contractor

  • Sanders was paying the subcontractor and did not believe he was responsible for paying the subcontractors workers

  • The subcontractor ceased work on the project in January 2007

  • The workers ceased work either in December 2006 or January 2007

The hearing officer cited the holding in Hunt Building Corp. v. Bernick (2000) 79 Cal.App.4th 213, 220: “Labor Code section 2750.5 operates to conclusively determine that a general contractor is the employer of not only its unlicensed subcontractors but also those employed by the unlicensed subcontractors.” The hearing officer decided Sanders was the statutory employer of the workers employed by the subcontractor, entitling them to wages and interest. (§ 98.1, subd. (c).) The hearing officer declined to award waiting time penalties because he deemed there was a good faith dispute about whether Sanders was the employer.

Sanders filed an appeal and lost, with the superior court adopting the reasoning of the Labor Commissioner. Like the hearing officer, the superior court relied on Hunt and its interpretation of section 2750.5.

There are many issues to be aware of, many items to verify including ensuring the current and active license status of any subcontractors you do business with. The alternative of staying on top of items such as this could be a potentially crushing expense.

1 comment:

Netsuite Services said...

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