What to do when an employer stiffs you on a paycheck, then offers to pay in stallments? Details inside.
October 4, 2011 7:03 PM Subscribe
After two months of dodging me, my former employer is agreeing to pay me my last $1000 paycheck "in installments." Should I accept, or continue on to court?
I was working for a private tutoring/independent learning facility here in Southern California from Feb 2011 to Aug 2011. In early August, I worked what ended up being my last week for the summer session (I was full time.) After my last day, an expected three week summer break followed. During that time I went back home to attend to a death in the family. I was told I could pick up my last paycheck soon thereafter, as normal- employees were paid about every two weeks, though without a regular schedule, as the company is small and disorganized.
What followed in trying to get that last paycheck has been a nightmare. I got back to SoCal a week after my last day of the summer session. From that point on I had most all of my emails and calls to the company seeking my last check ignored. For weeks. I was supposed to go back to work in late August, but it seemed through the non-communication that wasn't happening.
After three weeks or so it became clear the company was in serious trouble financially. I started getting sporadic emails from one of the owners near late August/early September during which I learned that the fall session of work had been suspended (hence, I was pretty much laid off) and the company was "scrambling to get the money" to cover my last paycheck.
Many, many, texts, calls and emails followed, during which I got the run around in every conceivable way possible. At least five times I was promised the money over the phone- but still no check. After six weeks, I got fed up and went to the California Department of Labor and filed a grievance for non-payment of wages for $1000.
Cue to this week. I get a letter informing me of my court date regarding the grievance. It's nice because I feel I have an ironclad case, and I feel I might finally get my money.
I guess the company got their letter too- I finally get an email today from one of the owners, offering to pay me in installments ("one in a couple weeks, another one in a couple months) if I waive my governmental claim. Which is nice too- but makes me wonder if I need to or should accept.
Because here's my dilemma: I looked it up, and it seems that in their excessive tardiness in cutting my paycheck the company is liable for quite a fine- back pay plus interest, I guess. Here's my question: what should I do? Do I have to accept, should I go to court, and/or do I need to get a lawyer? I know the last option is the most obvious, but I am poor and not sure if a grand is enough to stir anyone's interest, or if it is necessary to get an attorney. But if it is, I will.
Other things possibly of interest: I never signed a contract and I was paid as a contractor- I never filled out a w-2. I have many emails from the owners admitting culpability. And, I don't know if it matters, but the owners have money, or at least as doctors they project that they do.
TL;DR: I got stiffed on a paycheck for months. Accept a late payment with no interest in installments or go to court?
I was working for a private tutoring/independent learning facility here in Southern California from Feb 2011 to Aug 2011. In early August, I worked what ended up being my last week for the summer session (I was full time.) After my last day, an expected three week summer break followed. During that time I went back home to attend to a death in the family. I was told I could pick up my last paycheck soon thereafter, as normal- employees were paid about every two weeks, though without a regular schedule, as the company is small and disorganized.
What followed in trying to get that last paycheck has been a nightmare. I got back to SoCal a week after my last day of the summer session. From that point on I had most all of my emails and calls to the company seeking my last check ignored. For weeks. I was supposed to go back to work in late August, but it seemed through the non-communication that wasn't happening.
After three weeks or so it became clear the company was in serious trouble financially. I started getting sporadic emails from one of the owners near late August/early September during which I learned that the fall session of work had been suspended (hence, I was pretty much laid off) and the company was "scrambling to get the money" to cover my last paycheck.
Many, many, texts, calls and emails followed, during which I got the run around in every conceivable way possible. At least five times I was promised the money over the phone- but still no check. After six weeks, I got fed up and went to the California Department of Labor and filed a grievance for non-payment of wages for $1000.
Cue to this week. I get a letter informing me of my court date regarding the grievance. It's nice because I feel I have an ironclad case, and I feel I might finally get my money.
I guess the company got their letter too- I finally get an email today from one of the owners, offering to pay me in installments ("one in a couple weeks, another one in a couple months) if I waive my governmental claim. Which is nice too- but makes me wonder if I need to or should accept.
Because here's my dilemma: I looked it up, and it seems that in their excessive tardiness in cutting my paycheck the company is liable for quite a fine- back pay plus interest, I guess. Here's my question: what should I do? Do I have to accept, should I go to court, and/or do I need to get a lawyer? I know the last option is the most obvious, but I am poor and not sure if a grand is enough to stir anyone's interest, or if it is necessary to get an attorney. But if it is, I will.
Other things possibly of interest: I never signed a contract and I was paid as a contractor- I never filled out a w-2. I have many emails from the owners admitting culpability. And, I don't know if it matters, but the owners have money, or at least as doctors they project that they do.
TL;DR: I got stiffed on a paycheck for months. Accept a late payment with no interest in installments or go to court?
Don't relent. They are still trying to give you the run-around with the installment plans.
posted by gnutron at 7:11 PM on October 4, 2011 [14 favorites]
posted by gnutron at 7:11 PM on October 4, 2011 [14 favorites]
"one in a couple weeks, another one in a couple months" sounds sketchy as hell. go to court. you have an email where they promised to pay which seems like admittion of culpibiity...
posted by nadawi at 7:12 PM on October 4, 2011 [3 favorites]
posted by nadawi at 7:12 PM on October 4, 2011 [3 favorites]
You've listed three options:
1. accept offer
2. court
3. lawyer
Keep in mind that there is a fourth: continue to negotiate. The offer they made now may not be their final offer, and your court date is leverage. You might be able to get immediate payment, instead of half now and half later.
I would not forfeit the court appearance. If they go bankrupt, it might be helpful to have a judgment against them.
/not an employment or bankruptcy lawyer, not legal advice
posted by J. Wilson at 7:14 PM on October 4, 2011
1. accept offer
2. court
3. lawyer
Keep in mind that there is a fourth: continue to negotiate. The offer they made now may not be their final offer, and your court date is leverage. You might be able to get immediate payment, instead of half now and half later.
I would not forfeit the court appearance. If they go bankrupt, it might be helpful to have a judgment against them.
/not an employment or bankruptcy lawyer, not legal advice
posted by J. Wilson at 7:14 PM on October 4, 2011
They've already stiffed you when they said they would pay initially, then again over the phone-- it would seem that they can't be trusted not to do so again. I agree with J. Wilson, negotiate full payment before the court date, or go to court.
posted by Static Vagabond at 7:16 PM on October 4, 2011 [1 favorite]
posted by Static Vagabond at 7:16 PM on October 4, 2011 [1 favorite]
negotiate full payment or go to court is my vote, too. I was in a similar position when working for a restaurant long ago and I made the mistake of accepting the gradual repayment offer ... and never got the full amount but couldn't protest.
posted by batmonkey at 7:20 PM on October 4, 2011 [1 favorite]
posted by batmonkey at 7:20 PM on October 4, 2011 [1 favorite]
Accept a late payment with no interest in installments or go to court?
Before you go to court -- find yourself a lawyer who will know the proper legal scare-phrases to use in a letter telling them that you, out of the goodness of your heart, will give them five business days to send you a check for the full amount that you're owed or you will have no choice but to exercise your legal rights to sue.
posted by jason's_planet at 7:28 PM on October 4, 2011
Before you go to court -- find yourself a lawyer who will know the proper legal scare-phrases to use in a letter telling them that you, out of the goodness of your heart, will give them five business days to send you a check for the full amount that you're owed or you will have no choice but to exercise your legal rights to sue.
posted by jason's_planet at 7:28 PM on October 4, 2011
I think they're just hoping you'll waive your leverage for pennies on the dollar. There will be no further "installments", they're probably just lying.
I personally wouldn't accept anything less than your full pay plus interest before dropping the claim. Cash in hand, or wait until the check clears.
posted by fruit sandwich at 7:29 PM on October 4, 2011 [4 favorites]
I personally wouldn't accept anything less than your full pay plus interest before dropping the claim. Cash in hand, or wait until the check clears.
posted by fruit sandwich at 7:29 PM on October 4, 2011 [4 favorites]
Which is nice too- but makes me wonder if I need to or should accept.
No. These guys are manipulative, lying scumbags.
They didn't offer you anything until you forced their hand.
Don't waste any more time listening to their horseshit. Push until you get what you're entitled to.
posted by jason's_planet at 7:34 PM on October 4, 2011 [1 favorite]
No. These guys are manipulative, lying scumbags.
They didn't offer you anything until you forced their hand.
Don't waste any more time listening to their horseshit. Push until you get what you're entitled to.
posted by jason's_planet at 7:34 PM on October 4, 2011 [1 favorite]
You have plenty of documentation - emails, texts, phone calls - document that.
DO NOT WAIVE YOUR CLAIM.
If they pay your officially decreed settlement in installments, that's fine. But go ahead and decline this bullshit offer they've made you. They are stringing you along. Don't fall for it.
Go to court.
(OH! Make sure to professionally and politely decline them in writing in language that is short, sweet, and you would not mind having a judge or mediator read, because this correspondence is going in your documentation file for your case! It proves they know they owe you!)
I live in California and have known friends on both sides of labor claims, FWIW.
Go to court.
posted by jbenben at 7:36 PM on October 4, 2011 [2 favorites]
DO NOT WAIVE YOUR CLAIM.
If they pay your officially decreed settlement in installments, that's fine. But go ahead and decline this bullshit offer they've made you. They are stringing you along. Don't fall for it.
Go to court.
(OH! Make sure to professionally and politely decline them in writing in language that is short, sweet, and you would not mind having a judge or mediator read, because this correspondence is going in your documentation file for your case! It proves they know they owe you!)
I live in California and have known friends on both sides of labor claims, FWIW.
Go to court.
posted by jbenben at 7:36 PM on October 4, 2011 [2 favorites]
"I'll pay you in installments" is even lamer than "The check's in the mail." It's pure BS. Don't fall for it.
posted by IAmBroom at 7:45 PM on October 4, 2011 [3 favorites]
posted by IAmBroom at 7:45 PM on October 4, 2011 [3 favorites]
You need to prove two things in your grievance hearing:
1) You are owed back pay (easy)
2) You were an employee, not an independent contractor. According to this, independent contractors are not eligible to use the wage grievance hearing procedure.
It sounds like your employer wanted you to be an independent contractor. However, depending on the details of your case, the hearing may or may not find that you were. For example, if you were working during set hours at the employer's site, you were definitely an employee, whether or not you got a W-2.
If you can't prove you were an employee, you'll have to sue them in regular civil court. This might cost much more than you are willing to spend.
IANAL!
posted by miyabo at 7:53 PM on October 4, 2011
1) You are owed back pay (easy)
2) You were an employee, not an independent contractor. According to this, independent contractors are not eligible to use the wage grievance hearing procedure.
It sounds like your employer wanted you to be an independent contractor. However, depending on the details of your case, the hearing may or may not find that you were. For example, if you were working during set hours at the employer's site, you were definitely an employee, whether or not you got a W-2.
If you can't prove you were an employee, you'll have to sue them in regular civil court. This might cost much more than you are willing to spend.
IANAL!
posted by miyabo at 7:53 PM on October 4, 2011
You don't "negotiate" wages for time already worked. Court. No question.
posted by spaltavian at 8:02 PM on October 4, 2011 [1 favorite]
posted by spaltavian at 8:02 PM on October 4, 2011 [1 favorite]
I am not a lawyer, but it sounds to me like these guys will jerk you around for as long as possible while they try to salvage their own sorry asses. Businesses prioritize these things, and right now, you are the lowest on the totem pole. Go to court. The court may allow a payment plan, but at least that will be enforceable. Without the force of law behind it, their promise is really useless to you.
posted by Gilbert at 8:06 PM on October 4, 2011 [1 favorite]
posted by Gilbert at 8:06 PM on October 4, 2011 [1 favorite]
one in a couple weeks, another one in a couple months
LOL.
The best thing is to talk to a lawyer. You don't have to hire one to represent you, but a consultation with an employment lawyer might be free or low-cost. There are some sticky issues here including whether you're an employee or not, whether they have to pay additional penalties to you or the state, your priority in bankruptcy, collecting any amounts owed, the extra tax liability you would owe as an independent contractor when you were actually an employee.
I definitely wouldn't take this ridiculous offer. They already promised you the money when you did the work, and they haven't paid what they owe. Now they want you to withdraw a valid claim for another useless promise that they won't pay either.
If you don't dispute their assessment of you as an independent contractor, you will probably owe additional self-employment tax. They may not want this to be reported to the IRS, because it probably affects a lot of the other people they've been employing as well.
posted by grouse at 8:08 PM on October 4, 2011
LOL.
The best thing is to talk to a lawyer. You don't have to hire one to represent you, but a consultation with an employment lawyer might be free or low-cost. There are some sticky issues here including whether you're an employee or not, whether they have to pay additional penalties to you or the state, your priority in bankruptcy, collecting any amounts owed, the extra tax liability you would owe as an independent contractor when you were actually an employee.
I definitely wouldn't take this ridiculous offer. They already promised you the money when you did the work, and they haven't paid what they owe. Now they want you to withdraw a valid claim for another useless promise that they won't pay either.
If you don't dispute their assessment of you as an independent contractor, you will probably owe additional self-employment tax. They may not want this to be reported to the IRS, because it probably affects a lot of the other people they've been employing as well.
posted by grouse at 8:08 PM on October 4, 2011
Also, a conference or hearing before a labor commissioner is not "court." That option will still be still be available to you after things work their way through the labor system, although you may have only a limited time to appeal.
posted by grouse at 8:22 PM on October 4, 2011
posted by grouse at 8:22 PM on October 4, 2011
You wouldn't be waiving your claim in exchange for the amount owed, you'd be waiving it exchange for a promise of future payment of the amount owed. Given their history, you know what their promises are worth.
Don't waive.
posted by fatbird at 8:27 PM on October 4, 2011 [2 favorites]
Don't waive.
posted by fatbird at 8:27 PM on October 4, 2011 [2 favorites]
Hell no, go to court. You've waited long enough. Not only that, just ask the judge first thing if you'd need to refile in order to include damages, or if they can be awarded in your current case.
posted by rhizome at 9:18 PM on October 4, 2011
posted by rhizome at 9:18 PM on October 4, 2011
You have no reason to trust them, and every reason not to trust them. If they show up at court with cash, and you can still drop the suit, fine. This is appalling behavior; you earned the money, they need to pay you. Keep in mind, the court judgment is not money. You still have to collect. Not sure I'd take a check from these weasels.
posted by theora55 at 11:54 PM on October 4, 2011
posted by theora55 at 11:54 PM on October 4, 2011
Do not accept their offer. Tell them that you will not be waiving your claim unless payment is made in full by x date (depends on your court date and how long checks take to clear - set it far enough ahead of the court date that the check is guaranteed to have cleared if its good)
posted by missmagenta at 1:36 AM on October 5, 2011
posted by missmagenta at 1:36 AM on October 5, 2011
Go through with court unless they pay you in full beforehand. Otherwise you probably will never see money from them.
posted by Melsky at 1:51 AM on October 5, 2011
posted by Melsky at 1:51 AM on October 5, 2011
In Texas, when you file for unpaid wages the company owner cannot open any business in the future before paying what you are owed. Maybe look into whether California has a similar law. My sister was not paid her last check from a daycare she worked at during high school, and she got it maybe a decade later just out of the blue because the owners finally had their finances together and they wanted to open another business. If you don't go to court, you can't possibly have that kind of leverage.
posted by Houstonian at 2:23 AM on October 5, 2011
posted by Houstonian at 2:23 AM on October 5, 2011
If you go to the department of labour, here is what will happen:
1) You will say, "Bitches owe me money."
2) They will say, "Blah blah blah blah"
3) The person from the DoL will say, "Bitches DO owe you money. Bitches, pay the money."
4) You will have a summary judgement against the company.
Victory? Hardly.
5) Now, the judgement is there... but you have to go get a lawyer to begin enforcing the judgement. Based on the size of the claim, you will have trouble finding a lawyer to do it without paying them in advance, and I think we're all clear on how far $1000 goes with a lawyer. That Mercedes Benz didn't come cheaply, after all.
Further, keep one thing deeply in mind. 'No blood from turnip.' Chances are, they would have paid you if they could. Thus, there is a deep problem in the business and the chances that even a lawyer can get the money is probably slim, as your claim as a contractor will fall after what one can imagine are other claims on a failing business.
So what to do?
You have a good amount of power here as they realise that a claim against the business will really fuck with their credit in the future. So they do not want that claim to proceed. They really don't want the claim to proceed.
Now, they have offered you instalments. But we're talking about $1000 here. If they really want that claim not to proceed, the price is $1000. Tell them you are happy to waive the claim for $1000. It's not your problem where that comes from or any of their sob bullshit about the customer that didn't pay. They made a contract and now they have two choices, 1) they can pay you $1000 to drop the claim, or 2) they can go explain it to the DoL. In the latter, you will probably not get money and they will not be happy either.
Perhaps they need to understand this and put a little more energy into getting that money in time for you to waive your claim. Be strong. Let them hem and haw and babble and wail. At the end of the day, they can either pay you $1000, or they can go to the DoL.
If you want more details about how and why I did it feel free to message. Otherwise, bitches owe you money and they can either find some money, or you can prevent them from having a business, and thereby stop this from happening to other people.
I surmise that if you play it right, you'll get your money.
posted by nickrussell at 3:10 AM on October 5, 2011 [1 favorite]
1) You will say, "Bitches owe me money."
2) They will say, "Blah blah blah blah"
3) The person from the DoL will say, "Bitches DO owe you money. Bitches, pay the money."
4) You will have a summary judgement against the company.
Victory? Hardly.
5) Now, the judgement is there... but you have to go get a lawyer to begin enforcing the judgement. Based on the size of the claim, you will have trouble finding a lawyer to do it without paying them in advance, and I think we're all clear on how far $1000 goes with a lawyer. That Mercedes Benz didn't come cheaply, after all.
Further, keep one thing deeply in mind. 'No blood from turnip.' Chances are, they would have paid you if they could. Thus, there is a deep problem in the business and the chances that even a lawyer can get the money is probably slim, as your claim as a contractor will fall after what one can imagine are other claims on a failing business.
So what to do?
You have a good amount of power here as they realise that a claim against the business will really fuck with their credit in the future. So they do not want that claim to proceed. They really don't want the claim to proceed.
Now, they have offered you instalments. But we're talking about $1000 here. If they really want that claim not to proceed, the price is $1000. Tell them you are happy to waive the claim for $1000. It's not your problem where that comes from or any of their sob bullshit about the customer that didn't pay. They made a contract and now they have two choices, 1) they can pay you $1000 to drop the claim, or 2) they can go explain it to the DoL. In the latter, you will probably not get money and they will not be happy either.
Perhaps they need to understand this and put a little more energy into getting that money in time for you to waive your claim. Be strong. Let them hem and haw and babble and wail. At the end of the day, they can either pay you $1000, or they can go to the DoL.
If you want more details about how and why I did it feel free to message. Otherwise, bitches owe you money and they can either find some money, or you can prevent them from having a business, and thereby stop this from happening to other people.
I surmise that if you play it right, you'll get your money.
posted by nickrussell at 3:10 AM on October 5, 2011 [1 favorite]
Find a lawyer who will draft up a confession of judgment. You won't have to prove the debt in court. Do not do this yourself.
I am not your lawyer, this is not legal advice.
posted by Ironmouth at 5:12 AM on October 5, 2011 [1 favorite]
I am not your lawyer, this is not legal advice.
posted by Ironmouth at 5:12 AM on October 5, 2011 [1 favorite]
Do not waive the claim under any circumstances. I'm assuming they put you in a tough situation. Call the local law school and ask for the clinic program. They'll have a clinic for students that will be low cost and supervised by attorneys. Have them help you!
posted by Ironmouth at 5:15 AM on October 5, 2011 [1 favorite]
posted by Ironmouth at 5:15 AM on October 5, 2011 [1 favorite]
Your employer isn't offering to pay you in installments, they're offering to shaft you. Again.
Listen to Ironmouth.
posted by valkyryn at 5:32 AM on October 5, 2011
Listen to Ironmouth.
posted by valkyryn at 5:32 AM on October 5, 2011
Call these people for a free consult and possible representation and advice. I used to work there and they are good. If you're not in San Diego they may be able to refer you to someone who could help you elsewhere in So Cal.
posted by Aizkolari at 5:40 AM on October 5, 2011 [1 favorite]
posted by Aizkolari at 5:40 AM on October 5, 2011 [1 favorite]
The best outcome would be full payment and no court time, so do this:
1) Thank them for owning up to their obligation
2) Explain politely but firmly that the only resolution is full payment. It can happen either with a check issued this week or by court order, likely including fines.
3) If they won't pay in full in 7 days then go to court.
Seriously, $1000 is not a lot of money to this business. They would much rather pay it off and not have their name in the public record over this. I can't believe they aren't begging you to take the full payment to get this off their plate.
posted by dgran at 6:01 AM on October 5, 2011
1) Thank them for owning up to their obligation
2) Explain politely but firmly that the only resolution is full payment. It can happen either with a check issued this week or by court order, likely including fines.
3) If they won't pay in full in 7 days then go to court.
Seriously, $1000 is not a lot of money to this business. They would much rather pay it off and not have their name in the public record over this. I can't believe they aren't begging you to take the full payment to get this off their plate.
posted by dgran at 6:01 AM on October 5, 2011
There's already a conference or hearing before a deputy labor commissioner scheduled. No need to give them the opportunity to delay the process further. If they need a deadline for paying you off, the conference date will work just fine.
posted by grouse at 6:59 AM on October 5, 2011 [1 favorite]
posted by grouse at 6:59 AM on October 5, 2011 [1 favorite]
And really, just to put a button on it, these people are sociopaths. They have the $1000, they just want the power over you that comes with you accepting installments. If you accept installments, then once again they get to decide when and how much you get paid, and they will use that power to not pay you, knowing that you won't go through with any court action anyway, since, you know, you dropped it on a fake promise before. If they come up to you the day of court offering to settle (likely because they don't want a judgement on the record), tell them you'll drop it for a cashier's check for $10,000 and not one minute sooner. A clean business record is valuable.
posted by rhizome at 9:26 AM on October 5, 2011
posted by rhizome at 9:26 AM on October 5, 2011
Court!
You should have been paid on your last day.
posted by jeffamaphone at 9:36 AM on October 5, 2011
You should have been paid on your last day.
posted by jeffamaphone at 9:36 AM on October 5, 2011
Response by poster: BTW I got paid, finally. Thanks for the advice everyone!
posted by joechip at 1:06 PM on November 4, 2011 [1 favorite]
posted by joechip at 1:06 PM on November 4, 2011 [1 favorite]
This thread is closed to new comments.
posted by Malor at 7:09 PM on October 4, 2011 [11 favorites]