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  #1  
Old 01-04-2011, 03:14 PM
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Default Tom I Need Your Help Re: A Contract! ASAP!

I had a DCM whose days changed every semister, because of her job. Each time she switched her days, I had her sign a new contract stating what the days were.

I took vacation from Dec 24-Jan 2, and her last day before my vacation was on Dec 22, and on that day she gave me her new crazy schedule. Due to the fact it was Christmas and I was on vacation, i didn't really go over to much in detail until after Christmas had passed, when I had time to review it. I could not accommodate her new schedule because it was too crazy and interfered with me taking on new clients, so I wrote her a letter and offered her a FT spot for 5 days between certain times, & if that would not work, she would need to make other arrangments.

I wrote up a termination notice based on a verbal conversation & my interpretation of that conversation I had with her on Monday, and sent it through email today. So now she says she is not coming at all. We are done.

Now in my contract I have in there that when notice is given by any party, full payment for the 2 wks is due weather or not the child attends. My big question for you, is considering that there was not a new contract signed yet with her new days on it, am I still covered by the old contract since it does not have an expiration date on it? I has "assumed" since the days were different, the old contract was no longer valid, and I opened up my big mouth too soon and had told her in my offer letter that I was currently providing care without a contract..so I "think" I may have just shot myself in the foot and don't have a leg to stand on to get the 2 wks payment now. I need to find this out before I can respond back to her.

I know this was long, thanks for taking the time to read it, as I know you are very busy!

Last edited by Michael; 01-04-2011 at 05:08 PM.
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Old 01-04-2011, 05:09 PM
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Originally Posted by legomom922 View Post
I had a DCM whose days changed every semister, because of her job. Each time she switched her days, I had her sign a new contract stating what the days were.

I took vacation from Dec 24-Jan 2, and her last day before my vacation was on Dec 22, and on that day she gave me her new crazy schedule. Due to the fact it was Christmas and I was on vacation, i didn't really go over to much in detail until after Christmas had passed, when I had time to review it. I could not accommodate her new schedule because it was too crazy and interfered with me taking on new clients, so I wrote her a letter and offered her a FT spot for 5 days between certain times, & if that would not work, she would need to make other arrangments.

I wrote up a termination notice based on a verbal conversation & my interpretation of that conversation I had with her on Monday, and sent it through email today. So now she says she is not coming at all. We are done.

Now in my contract I have in there that when notice is given by any party, full payment for the 2 wks is due weather or not the child attends. My big question for you, is considering that there was not a new contract signed yet with her new days on it, am I still covered by the old contract since it does not have an expiration date on it? I has "assumed" since the days were different, the old contract was no longer valid, and I opened up my big mouth too soon and had told her in my offer letter that I was currently providing care without a contract..so I "think" I may have just shot myself in the foot and don't have a leg to stand on to get the 2 wks payment now. I need to find this out before I can respond back to her.

I know this was long, thanks for taking the time to read it, as I know you are very busy!
IMHO, that fact that you gave her an offer letter with a no contract mention leaves the ball with her. That letter is the current contract.
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Old 01-04-2011, 05:19 PM
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IMHO, that fact that you gave her an offer letter with a no contract mention leaves the ball with her. That letter is the current contract.
Michael, what do you mean the letter is the new contract?
Are you saying that if she rejected the offer, then there is no current contract signed, and the old one is now invalid?
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Old 01-04-2011, 06:23 PM
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Default Contract or not?

You haven't put your foot in your mouth. You had a contract with the parent. The parent wanted to change hours that you did not accept. You proposed that she come to you with different hours than your contract and the parent did not accept. You then gave the parent a termination notice.

The written contract that you have is the last one the parent signed. There was no written agreement, signed by both parties, to change this contract. A contract can be changed (or a new one agreed to) only when both parties sign it. That didn't happen. Therefore, you are operating under the last contract you both signed.

Your contract requires a two week notice for termination if you or the parent terminates and payment is due for the two weeks no matter what. You gave a proper termination notice. Therefore, she owes you for two weeks.

Send the parent a letter stating that if she doesn't pay you for the two weeks you will take her to small claims court.
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Old 01-04-2011, 06:36 PM
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Thank you soooo much Tom! I'm so glad you were out there tonight! I really appreciate your help!
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Old 01-04-2011, 07:57 PM
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YES! I was right for once!

Make sure to keep it simple and to the point to get your money. I would only give her about 7-10 days from the time you mail it out to her to have her pay you. Make sure to put what day they'll be turned into small claims court. No exceptions! Good job!
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Old 01-04-2011, 08:54 PM
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Geez, My contract says when term notice is given, all fees are due in advance, so I put she had to pay by friday!!
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Old 01-04-2011, 09:31 PM
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Hmm, so when you choose to terminate and when the parent chooses to terminate care then those two weeks always must be paid prior to the two final weeks or just in advance each week? Do they currently back pay for the week or do you require one week advance payment?

Also, do you have late fees? I wonder how much those would add up to be omitting the time you were on vacation...so technically that would be their expected day back just a few days ago which shouldn't be too bad in fees right now anyways.
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Old 01-05-2011, 03:30 AM
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Hmm, so when you choose to terminate and when the parent chooses to terminate care then those two weeks always must be paid prior to the two final weeks or just in advance each week? Do they currently back pay for the week or do you require one week advance payment?

Also, do you have late fees? I wonder how much those would add up to be omitting the time you were on vacation...so technically that would be their expected day back just a few days ago which shouldn't be too bad in fees right now anyways.
When notice is given or recieved, the final 2 wks payment is due immediately to avoid them running off..However, I will now be changing my policy and will require either a 1 weeks deposit when they sign up or have them pay in advance on fridays for the week coming up, so I dont get shorted.

Live and learn...
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Old 01-05-2011, 05:32 AM
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I wonder about this. I don't think Tom knows the whole story.

The old contract may be valid, BUT, if the provider breeched the contract, by changing her closing hours to 2:30 instead of 4:30 without advance notice, making it impossible for the parent to use care because she works until 4:00 on some days, is the contract still valid?

I think you need to clarify this with Tom. I find it hard to believe that you can press the matter when YOU changed the contract, verbally, when you told the parent you would no longer care for her child after 2:30 because you MAY need to make doctor's appointments.
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Old 01-05-2011, 06:31 AM
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I wonder about this. I don't think Tom knows the whole story.

The old contract may be valid, BUT, if the provider breeched the contract, by changing her closing hours to 2:30 instead of 4:30 without advance notice, making it impossible for the parent to use care because she works until 4:00 on some days, is the contract still valid?

I think you need to clarify this with Tom. I find it hard to believe that you can press the matter when YOU changed the contract, verbally, when you told the parent you would no longer care for her child after 2:30 because you MAY need to make doctor's appointments.
First of all I didn't change my closing hours. She changed her schedule which made it impossible for me to work around weather it was appointments, or other clients. i offered her "specific contracted hrs" of 630am-230pm m-f which fell in between my operating hours, based on her most common needs for care, which for the last semister, pick up was usually anywhere between 1130-2, and drop off was anywhere from 630-9am.

I didn't change the contract. She changed her schedule and when ever she would change her schedule, i would draw up a new contract. This time, I did not agree with her changes, so a new contract was not drawn up. A new contract would have drwn up IF she had accepted my offer letter.

Bottom line is I need a client who has consistent hrs, and is not going to tell me 8 hrs in advance that there times has changed ...again.
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Old 01-05-2011, 07:17 AM
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ITA that you need a client with regularly scheduled hours, as this clearly isnpt working for you. I don't think you have done anything wrong, I just question wether or not you will be able to make her pay the final two weeks that she doesn't attend if you change the times that YOU are available.

I am sorry for double posting here and on the other thread, I just want to make sure Tom sees it nd that you recieve the accurate information based on the whole story, not just the bit about the last contract.

So, here is my post from the other thread so Tom sees what I am referring too:


Maybe I am misunderstanding this post:

She thought she could just stay on 3 days when I spoke with her this am, BUT she said her hrs would still be all over the place. I told her the problem is the days and times each week change, and I just cannot schedule anyone else in case she needs it. Then she says "well your policy says you are open 630-430" and I am not familiar with "contracted" hrs, as this is a new concept to me, so I didnt know how to answer it, so I said my rate was based "up to" 8 hrs and clients can choose which hrs they want within that time frame, but it doesnt mean you can come 630-430 for the same rate. Then I said I am now only offering care until 230pm m-f and that any new clients coming in are paying a higher rate too. So then she said well I dont know if I can stay anyway then because I need care until 4 on some days. I told her staying until 4 would have to be approved based on my availability and that is something I cannot guarentee if it is going to vary. Is there any other way of explaining "contracted" hrs? At this point I think I just want her gone

It sounds like she was originally contracted for variable hours, based on her schedule, and some of those days pick up would be as late as 4:30. YOU then told her that YOU were changing those hours to the latest pick up being 2:30 because you have other things to attend to and cannot count on her hours being the same, so you were setting it to where YOU would not be inconvenienced by HER changing schedule, that YOU agree to work with in the first place. So, if that is right, you did change the contract, verbally and breeched the original contract.

If I am misunderstanding, my apologies, but that is what it sounds like to me.
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Old 01-05-2011, 08:36 AM
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ITA that you need a client with regularly scheduled hours, as this clearly isnpt working for you. I don't think you have done anything wrong, I just question wether or not you will be able to make her pay the final two weeks that she doesn't attend if you change the times that YOU are available.

I am sorry for double posting here and on the other thread, I just want to make sure Tom sees it nd that you recieve the accurate information based on the whole story, not just the bit about the last contract.

So, here is my post from the other thread so Tom sees what I am referring too:


Maybe I am misunderstanding this post:

She thought she could just stay on 3 days when I spoke with her this am, BUT she said her hrs would still be all over the place. I told her the problem is the days and times each week change, and I just cannot schedule anyone else in case she needs it. Then she says "well your policy says you are open 630-430" and I am not familiar with "contracted" hrs, as this is a new concept to me, so I didnt know how to answer it, so I said my rate was based "up to" 8 hrs and clients can choose which hrs they want within that time frame, but it doesnt mean you can come 630-430 for the same rate. Then I said I am now only offering care until 230pm m-f and that any new clients coming in are paying a higher rate too. So then she said well I dont know if I can stay anyway then because I need care until 4 on some days. I told her staying until 4 would have to be approved based on my availability and that is something I cannot guarentee if it is going to vary. Is there any other way of explaining "contracted" hrs? At this point I think I just want her gone

It sounds like she was originally contracted for variable hours, based on her schedule, and some of those days pick up would be as late as 4:30. YOU then told her that YOU were changing those hours to the latest pick up being 2:30 because you have other things to attend to and cannot count on her hours being the same, so you were setting it to where YOU would not be inconvenienced by HER changing schedule, that YOU agree to work with in the first place. So, if that is right, you did change the contract, verbally and breeched the original contract.

If I am misunderstanding, my apologies, but that is what it sounds like to me.

I will put my reply to you from the other thread here as well. I too want good info before I push getting her to pay.

Crystal, Originally, when she first came, she had contracted for Sept & Oct: Tues & Thurs 630-2, Fri 1130-4 . Then for Nov & Dec, went to Mon 645-3, Thurs 730-3, Fri 11-4. Now on paper this looks ok, and it's doable, however, the scehule NEVER stayed like this. It was all over the place and she would text me alot at night to tell me hrs for the next day. There was not 1 time since Oct 16, that she ever picked up after 2.

I had only agreed to variable schedule as stated above, with set times on set days. I didnt care that the times on Tuesdays were different from Fridays. She would tell me on a Tues that she would be picking up at 1230 on fri, and then thursday night I would get a text at 9pm that would say she is picking up at 2 instead, which then would cause a conflict if I had already scheduled a appt for 130, so then I would have to reschedule my appt to accomodate her change in hrs. I had physical therepy appts scheduled early at 730am on Fridays, and she would text me on Thursdays telling me she is dropping off at 630 instead of 9..It was INSANE. I rescheduled each appt I had to meet her changing hrs at a moments notice.

I wish I could scan this blank calendar she left me, so you could see it yourself, but January her hrs and days changed again, and again for Feb, etc. She didn't even know times, and on alot of days she didnt even know if she needed me or not, and just put like a question mark on that day, and no 2 wks were the same..It was totaly unacceptable to me and would give anyone a headache just looking at it.

I just dont understand where you think I changed the contract on her. I offered a new contract for hrs within my operating hrs on a new set schedule,(which would mean I am now only offering care to her from 630-230 only) AFTER she gave me her new schedule, which would have required a new contract anyway because she switched her days also. So can you be more specific by what you mean? I really want to understand.

I could see your point if I decided to change her hrs while we still working with her old schedule from Nov & Dec, but that schedule no longer existed anyway.
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Old 01-05-2011, 01:11 PM
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This is a complicated topic. I think the simplest way to answer this is to say that if you are changing hours or days in a contract with a parent you should give that parent as much notice before the change goes into effect as you would have to give the parent if you were going to terminate the contract.

So, if you were required to give the parent a 2 week notice to end the contract, give the parent a 2 week notice when you want to change the days and hours.

Next, I think the best way to handle a contract when the parent hours and days are subject to so much change is to state in the contract the days and hours you are open (M-F; 7am-6pm) and then state that the exact days and hours the child will come will be determined based on a separate written schedule that is signed by both parent and provider. If either one doesn't like what the other is doing (ie. parent demanding too many changes, or provider demanding reduced hours or days that the parent doesn't like) then either party can terminate the agreement.

I believe the parent treated you badly in your situation and they owe you the money.

To prevent a parent leaving owing you money I recommend that all providers require the parent to pay in advance for the last two weeks of care (at least). This is due upon enrollment. You can set up a payment plan with the parent. If the parent hours and days always change, come up with an average amount of payment in a week and require two weeks of this amount in advance.
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Old 01-05-2011, 08:18 PM
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Originally Posted by legomom922 View Post
Michael, what do you mean the letter is the new contract?
Are you saying that if she rejected the offer, then there is no current contract signed, and the old one is now invalid?
I am no lawyer but have been through several law suits and small claims. I retain lawyers for my businesses.

You wrote: "told her in my offer letter that I was currently providing care without a contract"

IMO, the other party may show the judge your last letter which states a no contract arrangement. If she presents that in small claims the judge may find your letter supports that new arrangement. I believe it will help the parent in justifying her not paying the two weeks since her new arrangement/agreement does not mentiont it.

I would be interested in finding out how the judge rules in small claims. They usually lean toward the individual since many people have little recourse/funds against a business.

If she bings that letter to small claims she may have it her way it all depends on the judge.
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Old 01-06-2011, 03:17 PM
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This is a complicated topic. I think the simplest way to answer this is to say that if you are changing hours or days in a contract with a parent you should give that parent as much notice before the change goes into effect as you would have to give the parent if you were going to terminate the contract.

So, if you were required to give the parent a 2 week notice to end the contract, give the parent a 2 week notice when you want to change the days and hours.

Next, I think the best way to handle a contract when the parent hours and days are subject to so much change is to state in the contract the days and hours you are open (M-F; 7am-6pm) and then state that the exact days and hours the child will come will be determined based on a separate written schedule that is signed by both parent and provider. If either one doesn't like what the other is doing (ie. parent demanding too many changes, or provider demanding reduced hours or days that the parent doesn't like) then either party can terminate the agreement.

I believe the parent treated you badly in your situation and they owe you the money.

To prevent a parent leaving owing you money I recommend that all providers require the parent to pay in advance for the last two weeks of care (at least). This is due upon enrollment. You can set up a payment plan with the parent. If the parent hours and days always change, come up with an average amount of payment in a week and require two weeks of this amount in advance.
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I am no lawyer but have been through several law suits and small claims. I retain lawyers for my businesses.

You wrote: "told her in my offer letter that I was currently providing care without a contract"

IMO, the other party may show the judge your last letter which states a no contract arrangement. If she presents that in small claims the judge may find your letter supports that new arrangement. I believe it will help the parent in justifying her not paying the two weeks since her new arrangement/agreement does not mentiont it.

I would be interested in finding out how the judge rules in small claims. They usually lean toward the individual since many people have little recourse/funds against a business.

If she bings that letter to small claims she may have it her way it all depends on the judge.
I did tell Tom that in my post at the top of this page, and he said I didn't put my foot in my mouth. I am assuming, and Tom can correct me if I am wrong here, that because the letter was not a arrangment nor a agreeement, and there were no signatures with anybody agreeing to anything, that the last signed contract would trump anyway.

Hopefeully Tom will set us straight here about that.
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Old 01-06-2011, 04:07 PM
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Default Contract

Maybe I'm getting lost in the weeds - but - A written contract is only binding if both parties sign it. Any change to a written contract needs to be signed by both parties. So, if you have a written contract and suggest to the parent that you want to make changes and the parent doesn't sign anything, you don't have a new contract.

Look to the last signed contract. That's the agreement that can be enforced in court.
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