How can I receive what's rightfully owed?
September 8, 2008 12:39 PM   Subscribe

How do I go about getting my paycheck from a company that has wrongfully withheld my pay, admitted to their mistake, and actively brushed me off, ignored me, lied<> to me for almost 3 months now? Details within.

I'm located in Los Angeles, CA.
(in advance, sorry about the long-winded explanation)

I was hired a few months ago to a tutoring company that is funded by the No Child Left Behind Act, offering free tutoring services to students of K-12 schools that report below-average scores on standardized tests.

My hiring contract identified me as an independent contractor. The terms of my contract were such that I must complete a minimum number of tutoring hours per student (26, in my case) by the end of the academic school year. Any hours short of the required minimum, I would be required to reimburse the company for $27 per hour (given the company's government contract hinged upon completion of said hours, as was explained to me). I was assigned three students upon hiring.

The pay system is such that, at the end of every month, I would send in sign-in sheets to be filled out during each tutoring session, and I would receive a paycheck in the mail. It happens that I only worked one hour in April, and most the large majority of my hours were worked in May and June, the paperwork for which were to be turned in together (as the school year ended mid-June). So, I was set out to receive all my pay at once.

In a nutshell, the one of my students declined tutoring due to scheduling difficulties (this occurred right after I was hired, upon initial contact with the students parents by telephone). I followed all proper procedures in notifying the company, double checked that I was not being held accountable for that student's hours, and proceeded to tutor my other two students.

HEREs where the problem occurs: Come July, Im waiting for my paycheck and I get an email saying that I did not meet the required hours. Takes about a week or two of back and forth emails to clarify that my neglected hours were the 26 required hours for the student that had canceled already. I explain my situation to the company contact that I spoke with initially, she says that she will pass on my email, and that my case must be reviewed by the company's review panel. The panel finds me at fault. I'm flabbergasted, call and request to speak with a supervisor of some sort.

At this point its been maybe three weeks since I was initially contacted. I speak with the supervisor and explain my situation. I am told that she was the person who reviewed all the cases. She appears to be completely unfamiliar with my case, and upon viewing my file (she said) there was absolutely no mention of my email explaining my situation (the student's cancellation, etc). Says she needs to speak to a supervisor and will get back to me the next day.

Supervisor never gets back to me, I continue to call and am constantly put on hold indefinitely or sent to her voicemail box. After two or three voicemails, 6 attempts at calling, I finally plead with the receptionist/operator (who informs me that this supervisor is now head of the department, and there is no one above her who I can speak with regarding the matter) and get the previous supervisor back on the phone.

I state that "I'm such and such, I've been trying to get in touch with you for a while now". My response: "uh huh". (not even an apology, or hint of recognition? I'm blown away) I re-explain my problem. "Uh-huh. hold on." Puts me on hold about 10 minutes. "Your check will be in the mail on monday." *click*.

So.. Monday was 8/18. It's been more than two weeks now, I still have no word on the check.. could not reach he by phone again. Sent the supervisor a lengthy email (last tues) explaining that my deep frustration has finally worn down my patience, and my courtesy ends with that email. I clearly stated that should I not hear back from her by weeks end, I will take legal action (small claims court)

I'm not one to go back on my word. I am certainly fed up, and clearly their head of department has not shown the courtesy expected of any professional. But, I am thinking about showing up at their office and demanding to speak with said head of department personally and asking for a check on the spot. (is this even a good idea? By demand, I don't mean yell and be unreasonable, I mean I won't leave before I get to speak to someone who can resolve my problem)

Barring that. Can I ask for more damages than the $700 or so they owe me? (in small claims court)

Is there anything in California labor law that gives me some solid ground to stand on? The nature of the company being a mostly by-mail operation, I have very little in the way of paperwork to support my case. At the most, phone records to show I actually did speak with them, and possibly a written statement from the student's parents stating they declined the tutoring.

Could they legally withhold my pay for such a long period of time? Even given that I did receive some 2 paychecks (for the total - the deducted $700ish), they were still received in mid-late August (well after I reasonably expected to receive my pay - their stated turnover time is 2 weeks from receipt of paperwork to mailing the check)

I have no legal experience, am a poor student, and desperately frustrated and unsure about what my next path forward should be.

Any of your input is greatly appreciated, thanks for taking the time to read this.
posted by s01110011 to Work & Money (13 answers total)
 
Get a lawyer to write a demand letter. A lot of times lawyer letterhead does the trick. Stupid, but true.
posted by small_ruminant at 12:47 PM on September 8, 2008


The effect of a letter from a lawyer will be be stunted by the fact that no lawyer would take a case involving such a small amount of money (even though it may be a lot to you).

Such a letter could only effectively state an intent to take action via small claims court, which you've already done, and I would recommend just going ahead and doing it. (IANAL.)
posted by o2b at 12:52 PM on September 8, 2008


In Arizona you would contact the Labor Board. An employer has a specific number of days to get you your last paycheck. If that amount of days has passed the Labor Board will file a petition on your behalf. In court here you would receive up to 3 times the pay that was withheld.
Call your local Labor Board and they can tell you the laws in California and even begin work on your case.
posted by phytage at 12:54 PM on September 8, 2008


Response by poster: I felt the same way about contacting a lawyer. My impression is that anything that is small claims worthy doesn't merit a lawyer's time.

As for the labor board, I wasn't sure whether I should contact them since I was technically employed as an independent contractor and not an employee of the company. I had a hard time finding anything regarding contractor work in the labor codes. But I will definitely give the labor board a call. Thanks for the suggestion.

Further comments much appreciated.
posted by s01110011 at 1:07 PM on September 8, 2008


You don't have to hire a lawyer to do what you said you'd do.

s01110011: I am thinking about showing up at their office and demanding to speak with said head of department personally and asking for a check on the spot. (is this even a good idea? By demand, I don't mean yell and be unreasonable, I mean I won't leave before I get to speak to someone who can resolve my problem)

I believe that this is a bad idea. It might be psychologically satisfying, but I don't believe you're really looking for psychological satisfaction - you just want to get paid as you ought to be.

Small claims court is the best way. You're on the right track. It's simpler and easier than most people think. Look around at the California Courts Small Claims Help Page to familiarize yourself a bit with the system. Then, take a deep breath and start working your way down this checklist; you're already past 1 (try working it out) and 2 (other options for mediation), I think, so just move on to 3. Find out a bit about the process, then fill out your forms, file the small claim, and serve them. There's a lot of good info on that web site; they make it pretty simple. Don't sweat it, just cross the t's and dot the i's.

Often, just serving them papers is enough to get action. But by the time you've served them, you'll know what to do if they don't respond.

Believe me, it will be much more comfortable and gratifying to explain what's happened to a judge than it will be to march up to their offices and refuse to leave until somebody talks to you.
posted by koeselitz at 1:36 PM on September 8, 2008


I am thinking about showing up at their office and demanding to speak with said head of department personally and asking for a check on the spot. (is this even a good idea? By demand, I don't mean yell and be unreasonable, I mean I won't leave before I get to speak to someone who can resolve my problem

You can try it, but if you are asked to leave you should definitely leave. Otherwise it is trespassing.

As for the labor board, I wasn't sure whether I should contact them since I was technically employed as an independent contractor and not an employee of the company.

Well, they might find that your relationship wasn't really an independent contractor relationship, and that you were actually an employee dressed up as a contractor to avoid labor laws. So it might be worth your while getting in touch with them.
posted by grouse at 1:42 PM on September 8, 2008


This post talks about some of the options available to you regarding collections in California should you win. Good luck!
posted by infinitewindow at 1:43 PM on September 8, 2008


NCLB? Call your Congresspeople.
posted by rhizome at 2:11 PM on September 8, 2008




I would do the following:
- Send a return-receipt certified letter to them explaining the situation briefly and giving them a deadline to respond. It only costs a dollar or two, and it might just do the trick. Save a copy of the letter for yourself too.
- If that doesn't work, I'd sue them in small claims court. It's easy, I've done it. You don't need a lawyer. IANAL, but it's entirely possible that CA lets you sue for extra damages if you can show they were malicious in withholding pay.
posted by meta_eli at 5:14 PM on September 8, 2008


BAM. Don't get a lawyer that would charge you $300/hour just to listen. A congressman couldn't care less, and small claims court may work...but it would take TONS of time to get your money (and a remedy).

http://www.dir.ca.gov/DLSE/

Call the LA office, have them help you file a wage claim, have ALL your materials (past pay stubs), and it would be awesome if you printed out all your emails.

If you need more help...message me. This is what I do.
posted by hal_c_on at 8:58 PM on September 8, 2008


hal_c_on: Call the LA office, have them help you file a wage claim, have ALL your materials (past pay stubs), and it would be awesome if you printed out all your emails.

But there won't be any pay stubs! Nor much material at all, most likely, beyond a contract. That's because s01110011 isn't an employee, but an independent contractor; and, thus, isn't within the jurisdiction of the DLSE... right?

[from DLSE web site here]: If... you are in fact an independent contractor, DLSE cannot assist you as it does not have jurisdiction over independent contractors, and you would have to go to court to enforce your rights.

I know that small claims isn't necessarily a big hassle, and sometimes it doesn't take long to get results. But it would be nice to go through an agency that deals with these kinds of things.

hal_c_on: Is there any way for an independent contractor to be represented by the DLSE? Would it be very difficult in this case for the poster to successfully challenge their independent contractor status?
posted by koeselitz at 9:34 PM on September 8, 2008


Response by poster: Yes, there are no pay stubs. I only have a contract, some copies of timesheets (not all. And also, these timesheets have nothing to do with the student who they penalized me for not having tutored), and the emails that were exchanged. (much of the important conversation happened over the telephone, and I'm not sure having phone records to show I spoke with them would be enough to say anything other than just that

Per the DSLE website: as found here

Q. The person I work for tells me that I am an independent contractor and not an employee. He does not make any payroll deductions or withholdings for taxes, social security, etc., when he pays me, and at the end of the year he provides me with an IRS form 1099 rather than a W-2. By paying me in this manner does it mean I am automatically an independent contractor?

A. No. The fact that a person who provides services is paid as an independent contractor, that is, without payroll deductions and with income reported by an IRS form 1099 rather than a W-2, is of no significance whatsoever in determining employment status. Your employer cannot change your status from that of an employee to one of an independent contractor by illegally requiring you to assume a burden that the law imposes directly on the employer, that being, withholding payroll taxes and reporting such withholdings to the taxing authorities.


So it looks like I will be talking to the DSLE sometime soon, and will be going to small claims if the DSLE finds that I am, in fact, an independent contractor. I hadn't even considered that winning in small claims wouldn't guarantee any sort of payment until I read the responses on Mefi. This company certainly seems like they wouldn't bother paying even if they lost in court.

Does anyone know where I can find regulations/laws regarding independent contractor relations? Most of my google searches turned up "independent contractors vs employees, etc." like the DSLE page I linked.

hal_c_on, do you work for the DSLE?

In the meantime, additional suggestions or comments would be great. Thanks again.
posted by s01110011 at 3:07 AM on September 9, 2008


Well, it's good that you're in Los Angeles. You can have a small claims filing done this afternoon pretty easily. The filing itself can be done online, and only costs $40 (I think, looking at the fee schedule). Go here to do that.

Then, get a friend who is not involved and who is at least 18 to serve the papers - all they have to do is go in, say "these are court papers," leave them, and then record that they've done so on a form.
posted by koeselitz at 12:53 PM on September 9, 2008


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