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Home>Levelset Community>Legal Help>I am a carpenter (sub contractor) who has been working for a GC in Texas. We (crew members), are frequently treated as employees, i.e. told when-what-where we are working and what jobs we are performing. We don’t sign any contracts for work to be performed or what the timeline is, contrary to a “normal” sub contractor to contractor agreement. The owner (GC) makes these decisions and contractual agreements with the client. We are however required to turn in a weekly invoice with our names (as our own company) and hours worked on said project. I have been working on an assigned project for a couple months that went over budget for a multitude of reasons. In good faith I turned in less hours than actually worked to keep budget in mind, and spent money on my personal debit card for materials to perform the task. I have detailed receipts. I have been using my own residence/electricity, etc. to work on said project. Once the project went over budget the GC informed me he would not only not pay me hours worked, but would not refund my detailed receipts showing they were all solely for the job and not personal expenses. I’ve informed the owner of the company (GC) I am not after anything but pay for my time and personal expenses. I don’t want this to effect the homeowner, just want to be compensated and move on with my life. I notified him of my last invoice on 9/11/19 as was told the next day he would send to his lawyer and hit me with a lien, which I’ve yet to see. I’ve spent almost two weeks from initial dispute stressed, confused, and countless hours on how to proceed. Please help.

I am a carpenter (sub contractor) who has been working for a GC in Texas. We (crew members), are frequently treated as employees, i.e. told when-what-where we are working and what jobs we are performing. We don’t sign any contracts for work to be performed or what the timeline is, contrary to a “normal” sub contractor to contractor agreement. The owner (GC) makes these decisions and contractual agreements with the client. We are however required to turn in a weekly invoice with our names (as our own company) and hours worked on said project. I have been working on an assigned project for a couple months that went over budget for a multitude of reasons. In good faith I turned in less hours than actually worked to keep budget in mind, and spent money on my personal debit card for materials to perform the task. I have detailed receipts. I have been using my own residence/electricity, etc. to work on said project. Once the project went over budget the GC informed me he would not only not pay me hours worked, but would not refund my detailed receipts showing they were all solely for the job and not personal expenses. I’ve informed the owner of the company (GC) I am not after anything but pay for my time and personal expenses. I don’t want this to effect the homeowner, just want to be compensated and move on with my life. I notified him of my last invoice on 9/11/19 as was told the next day he would send to his lawyer and hit me with a lien, which I’ve yet to see. I’ve spent almost two weeks from initial dispute stressed, confused, and countless hours on how to proceed. Please help.

TexasMechanics LienMonthly NoticeNotice of Intent to LienPayment DisputesRecovery Options

I am a carpenter (sub contractor) who has been working for a GC in Texas. We (crew members), are frequently treated as employees, i.e. told when-what-where we are working and what jobs we are performing. We don’t sign any contracts for work to be performed or what the timeline is, contrary to a “normal” sub contractor to contractor agreement. The owner (GC) makes these decisions and contractual agreements with the client. We are however required to turn in a weekly invoice with our names (as our own company) and hours worked on said project. I have been working on an assigned project for a couple months that went over budget for a multitude of reasons. In good faith I turned in less hours than actually worked to keep budget in mind, and spent money on my personal debit card for materials to perform the task. I have detailed receipts. I have been using my own residence/electricity, etc. to work on said project. Once the project went over budget the GC informed me he would not only not pay me hours worked, but would not refund my detailed receipts showing they were all solely for the job and not personal expenses. I’ve informed the owner of the company (GC) I am not after anything but pay for my time and personal expenses. I don’t want this to effect the homeowner, just want to be compensated and move on with my life. I notified him of my last invoice on 9/11/19 as was told the next day he would send to his lawyer and hit me with a lien, which I’ve yet to see. I’ve spent almost two weeks from initial dispute stressed, confused, and countless hours on how to proceed. Please help.

1 reply

Sep 17, 2019
Employee misclassification is a serious issue in the construction industry, and so is nonpayment. They are, in many cases, distinct issues though - so there may be multiple ways to go about being paid what's owed. Often, recovery efforts for constuction payments owed and unpaid will leverage the right to file a mechanics lien. And, for misclassification, reporting wage theft can help right any wrongs. Let's look at some options for payment recovery in construction. Then, we can touch on reporting wage violations. Sending monthly notices Monthly notices are required in order for subcontractors to preserve the right to file a mechanics lien. However, these notices do more than that. They also inform the property owner that their contractor isn't making payments to their subcontractors. And, they allow the property owner to withhold payment from their contractor in order to make sure the notice-sender gets paid. As a result, even in a situation where a subcontractor doesn't want to use their mechanics lien rights, it's a good idea to send notice anyway. The notices preserve the right to file a lien - which can also help leverage a contractor into making a payment, and they allow the owner to correct the issue on their own, if need be. Leveraging the right to make a lien claim Even if a subcontractor is dead-set on leaving the property owner out of it, preserving lien rights is important. Without preserving lien rights, a subcontractor loses the most powerful tool in their arsenal for payment recovery. Even if a subcontractor is wary of exercising their lien rights, at least allowing the appearance that lien rights will be used can keep a customer on their toes and can help put additional pressure on the customer to keep timely with payments. After all, owners really hate having mechanics liens filed against their property - so, if an owner believes that a subcontractor will potentially file a mechanics lien, then they may be more inclined to pressure their contractor into making timely payments to subs and vendors. Notice of Intent to Lien One of the best ways to leverage lien rights is to send a document like a Notice of Intent to Lien. It acts like a warning shot, informing a customer that if payment isn't made then a lien will be filed. Naturally, a contractor wants to avoid liens being filed on their job - so they may be more inclined to talk payment if they understand that a lien is on the table. What's more, sending a warning of a lien claim to the property owner, too, can help get a customer back on track - as discussed above. More on that idea here: What Is a Notice of Intent to Lien and Should You Send One? Mechanics lien While a subcontractor may want to leave the property owner out of the dispute, mechanics liens are the most powerful tools for construction payment recovery. Lien rights exist for a reason - society has generally decided that the ability to file a mechanics lien is important to make sure that construction businesses are paid. This is true even though mechanics lien laws may, at times, seem disadvantageous to property owners. What's more - note that in Texas, if someone other than the prime contractor files a mechanics lien, it's the prime contractor's responsibility to defend the owner against a mechanics lien under § 53-153 of the Texas Property Code. More on Texas mechanics liens here: Texas Mechanics Lien Guide and FAQs Options outside the mechanics lien process Mechanics liens may be the most powerful, but they're not the only tool available. When payments aren't properly made, pursuing litigation might be an option. Of course, where there's no contract for work, a breach of contract action might not necessarily be an option - though unjust enrichment might be on the table. Further, pursuing a claim in Texas small claims court could help to minimize court costs and the extended timeframes legal disputes typically have. And, just like with mechanics liens, threatening to take legal action can be an effective tool, even where that action might not actually be pursued. Reporting a contractor for wage theft There is a lot that goes into whether a party is considered an independent contractor or an employee. But, generally, to be considered an independent contractor - a party must have some control over the work that they perform. Mills Firm PLLC has a great article on the topic: Employee vs. Independent Contractor. Importantly, though - if a contractor has been misclassifying an employee as an independent contractor, that would very likely mean the contractor has failed to make a lot of necessary payments and contributions. And, the state of Texas, like other states, takes wage theft seriously. And, if a party submits a wage claim for unpaid wages, a contractor might be looking down the barrel of a serious payment dispute and a lot of legal liability (and rightfully so!). Just as discussed above - merely threatening to pursue certain action can lead to payment. So, in a situation where wage theft may have occurred, informing a contractor that making a wage theft claim is on the table could help convince them to make payments, as previously promised. Other resources Finally, here are two more resources that might be helpful here: (1) Can’t File a Lien? Here Are Some Other Options For Recovery (2) Don’t Want to File a Mechanics Lien? Here Are 5 Other Options
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