Can my employer sue to recover past wages if they neglected to fire me?
July 27, 2013 8:39 PM   Subscribe

Much like character "Milton" from Office Space, I've continued to receive a weekly paycheck long after my office was closed and all of the other employees were laid off. I've never been given any type of notification from HR that my employment was terminated. What should I do?

I had an IT position in a small field office of a large (~30k employees) company. The office was closed down and all of the other employees were laid off and given severance packages, while I remained onsite to deal with the packing and shipping of servers/routers/switches and other IT assets.

My boss at the time (who I'd only met twice, spoke to maybe quarterly, and hadn't actually seen in years) said he was looking into finding another position for me within the company working from home.. A week later, he was fired - and I've kind of been in limbo ever since.. The company has no other offices anywhere near me and most of the folks I did know in the company are now gone (The company was acquired and has gone through a merger)

At first I thought it was kind of funny - I figured I'd get a paycheck or two before being contacted by HR, but it has now been a bit over a year and I'm starting to worry.. Especially since the amount I've been paid without actually doing any work is becoming significant (~$70k, + benefits)

Should I just ride this until someone from HR contacts me or the paychecks stop coming?
Should I contact them myself? And if so - say what exactly?
Am I digging myself into bad legal nightmare here?

Other details:
I've received NO communication whatsoever from HR that my employment is terminated, and I did receive a W-2 for 2012.
I sign in every day via VPN, complete all necessary compliance training, and am technically available and ready to work.
This is non-union, At-will employment in the State of Texas.
posted by ninepin to Work & Money (28 answers total) 40 users marked this as a favorite
IANAL, and for a definitive, unbiased answer, you should probably spend a couple hundred bucks for the opinion of a Texas labor lawyer, familiar with Texas employment law.

Informally, I'd say it sounds like you're doing a great job daily of checking VPN and network performance from a Texas access point, and you should keep up the good work, and hang on to your red Swingline, until you hear further from headquarters.
posted by paulsc at 8:50 PM on July 27, 2013 [17 favorites]

1. Anyone can sue anyone for anything.
2. Talk to a lawyer, hired by you, not connected to the company. This is big money, and you need to be able to plan for the future. If you might end up owing it, you need to know that so you can plan for it.
3. I would consider discretely self-employing in the meantime. You need to continue to be available for your job, but you also need a source of income that is solidly yours. Your current source of income has a question mark hanging over it. My guess is that it's yours, but you need something other than guesses. And if you end up owing it, it would be better if you had been earning, instead of putting $70K on the credit card, so to speak.

But seriously, the stakes are too high, talk to a lawyer. If only to find out how to not screw up how you handle this. (#3 might screw it up, for example)
posted by anonymisc at 8:51 PM on July 27, 2013

You need to speak to an attorney. You're talking about tens of thousands of dollars that, when they find out you have been collecting and keeping, they might see as a theft. You want to know whether the law will consider it a theft, and about possible defenses you might have, because people can sue you for anything they want. What matters is the likelihood that they will succeed, and what remedies are likely to be ordered if they do. And we can't tell you that, because we don't have nearly enough information, and we are not your lawyers. Do not contact the company unless and until your lawyer tells you how to do so.

Start with a labor lawyer, as soon as possible.
posted by decathecting at 8:53 PM on July 27, 2013 [2 favorites]

I'm very much not a lawyer, but self-employing in the meantime sounds to me like it could come with its own complications. Then you'd be earning outside wages, arguably on time that you were being paid by the company for. I'm not sure what the legal ramifications of that might be, but at the very least I wouldn't imagine that [if found out] it would be looked at sympathetically by whomever the company eventually puts in charge of dealing with your situation. (anonymisc, I believe that's what you're getting at in your final parenthetical but I just wanted to elaborate a bit on the point.)

So if it were me, I'd want to ask a lawyer about outside employment before pursuing it, while also asking about the broader question.
posted by glhaynes at 9:06 PM on July 27, 2013 [2 favorites]

Hah. Wow. Please do consult an attorney. Please also consider how long you're able to feel morally comfortable with the arrangement. For your own piece of mind, and AFTER you have received level advice that supports this line of thinking, I believe you may feel compelled morally to contact HR.
posted by samthemander at 9:06 PM on July 27, 2013

Yes, they can sue you for anything they want, but if nobody ever fired you and you've been logging in every day and filling in timecards and all that, I would find it very hard to believe that they could recover anything.

On the other hand, it's probably time to find a new job. Good luck figuring out how to quit, though.
posted by gjc at 9:08 PM on July 27, 2013 [2 favorites]

I've been paid without actually doing any work

IAAL but not your lawyer. This statement is exactly why you need to consult with a lawyer. What did you think the money was for? That question needs a very good answer.

Frankly, I think you need consultation with criminal counsel in addition to civil counsel. I am sure the civil lawyer will give you a referral if he thinks one is necessary.
posted by Tanizaki at 9:38 PM on July 27, 2013 [8 favorites]

Hmm, part of the problem is that the more time that passes, the more money it is. The more money it is, the more likely they are going to be inclined to see if they can recover it, because with benefits, you're talking what - about $100,000?

So no, don't ride this through until HR figures it out, since it is not clear that 'it's not my fault that you forgot about me' is a legally defensible stance in your state. If it is a large comany, for that much money they might have some in house lawyer who might want to spend a few hours and a few bucks to test that theory and try to collect from you anyway. Get yourself some peace of mind, and some closure, by seeing a good labor lawyer.
posted by anitanita at 9:56 PM on July 27, 2013

It is very likely that at some point, someone is going to realize that you've been paid a lot of money for doing nothing. And they are going to want that money back. And if you've already spent it, you could be royally screwed.

If I were you, I'd be scared shitless and I'd stop taking money I wasn't honestly earning.
posted by gnutron at 12:03 AM on July 28, 2013 [3 favorites]

You might think about making this post anonymous based on the previous comments!
posted by superfish at 12:10 AM on July 28, 2013 [7 favorites]

Questions like these are one of the reasons primitive man invented the lawyer.

After talking to one, you may want to submit your resignation to H.R. If you are damned lucky, they'll just go through the motions and process it.

As opposed when some accountant stumbles over you and H.R., after scratching its head, sics a lawyer on you.
posted by sebastienbailard at 1:04 AM on July 28, 2013

Asks the mods to make this anonymous. Then, consult with a Texas lawyer who specializes in labor and employment.
posted by Area Man at 1:51 AM on July 28, 2013 [4 favorites]

I am a Texas attorney. My firm does a lot of employment work. I am absolutely not your attorney, but if you're around the Houston area, mefi me for some recommendations.
posted by anthropomorphic at 1:56 AM on July 28, 2013 [1 favorite]

I've been in an extremely similar situation, but the amount involved was probably a bit less than a thousand since it had been a part time retail job, not close to 100k.

I talked to quite a few people about what outcomes they'd seen pop up in similar cases. Almost all of them involved the person having to pay back the entire amount.

I dared not draw attention to myself by contacting anyone there, and after a couple months i stopped getting checks. I looked over my shoulder, so to speak, for months after that expecting the other shoe to drop. Pretty much the rest of the year, actually.

Talk to a lawyer is obvious, and has already been trumpeted quite loudly. But i'd ask that lawyer specifically about exit strategies, and if i was kicking the sleeping dog here by doing something like the resignation letter plan above.

Because ignoring all the other problems, isn't this pretty damn stressful? i mean even a couple months of this was unsustainable for me. Now you know that the boot is hanging over your head, how long can you really live with it?
posted by emptythought at 3:17 AM on July 28, 2013

I'd look for a new job, then resign.

The company has an obligation to actually terminate you. Absolutely consult with a lawyer, but you may be able to walk away if you leave of your own accord.
posted by Ruthless Bunny at 4:25 AM on July 28, 2013 [1 favorite]

Please, please, please do not take the advice of the answerers in this thread who are not Texas employment lawyers. There is serious money and risk involved here and you need legal advice ASAP. You might start by looking on the website of the Texas Employment Lawyers Association.
posted by fresh bouquets every day at 4:49 AM on July 28, 2013 [1 favorite]

You have never been terminated.

Someone is signing your checks.

You're covering your duties, few though they may be.

Yes, consult an attorney, but your position seems pretty sound.
posted by Unified Theory at 6:39 AM on July 28, 2013

It is someone's responsibility to manage you (your former now-fired boss's boss?), if you want to come out, I would contact them and say "X gave me a few tasks wrapping things up here, I've pretty much finished that up, are there any new projects I can get in on? I work from home and am competent in XYZ"
posted by 445supermag at 7:51 AM on July 28, 2013 [4 favorites]

Texas employment lawyer here. You will almost certainly be asked to return the money, when the payments are eventually discovered. And if you don't repay, you'll get sued. Not to say there isn't a defense here, but you need to see an employment lawyer ASAP. Spend 300 bucks to check on your potential 70000 dollar liability, please.
posted by seventyfour at 7:59 AM on July 28, 2013 [12 favorites]

OMG yes, you need a lawyer. IANAL but I know if my organization did something like this we would consider suing to get the money back. Because it's a lot of money, and we'd be embarrassed about the screwup.

Your lawyer will advise you, but until you have legal advice here are two things you should not do: Do not say anything to anyone (the company, former colleagues, FB) that suggests you were terminated. (Do not say you were told to "wrap up some tasks" or anything like that.) And, do continue to work if you possibly can, however slim the work is. Like, yes, continue to sign in, continue to maintain your credentials and update your training.

The case you are probably going to need to be able to make is that 1) you were never actually terminated, 2) you have remained ready and willing to work, and 3) you did do some work, however small the amount. It will be a hard case to make. And again, IANAL. You need a lawyer.
posted by Susan PG at 9:44 AM on July 28, 2013

Nthing lawyer advice. Ask the lwyer about this approach: If this is money that you couldn't possibly return on a moments notice, perhaps depositing it into a savings account? If threats appear, you could agree to settle by returning the cash in one go in an act of good faith?
posted by lalochezia at 2:13 PM on July 28, 2013

(not your lawyer, not licensed in Texas, and all that. But I work for a big company and I would be the guy that something like this would come to if they found it at my place.)

At first I thought it was kind of funny - I figured I'd get a paycheck or two before being contacted by HR, but it has now been a bit over a year and I'm starting to worry

This to me is the critical sentence. You readily acknowledge that the employer is only paying you because they forgot to terminate your employment, and that you are not doing anything for them.

Maybe the employer should be paying better attention to their payroll, but after the 2d or 3d check I think that a decent part of the responsibility shifted to you. This is especially true after your boss was fired and you heard nothing else. You are knowingly receiving money that you didn't earn. And you "sign in every day via VPN, [and] complete all necessary compliance training," which seems to be done purely to prolong the discovery that you do no work. Effectively, you are representing to them that you are an active employee of their company. You could argue that you log in to see if there's work being assigned to you, but I'd venture a guess that you have not reached out to anyone to say that you need work, or that you are being paid despite not doing work.

There are any number of causes of action that the employer could plead against you - "money had and received," unjust enrichment, even fraud by omission/concealment. Despite some of the flippant suggestions in this thread that it is not your problem, "no takebacks" and "shoulda paid better attention" are not legal defenses. The longer this goes on the more difficult the company will find it to ignore.

If my payroll department came to me and said "we have a $750 issue," I'd say "that's our dumb fault; let it go." If they said "we have a $7500 issue," I'd say "man, that guy is a little shady for just laying low until we found him, but let it go." If they said "we have a $75,000 issue, and the guy logs in once a day and does all the training but has not done anything else," I'd say "he's gaming us and we're going to get our money back."
posted by AgentRocket at 9:19 PM on July 28, 2013 [16 favorites]

Just chiming in as another not-your-lawyer-not-licensed-in-Texas person to emphasize that there's no inalienable duty on the employer that would allow you to get paid to not work for a year. Yes, they lost track of you due to their administrative mistakes, but, the same way you can't keep money accidentally put in your account by a bank, a court very well could find that you knowingly kept money that you didn't earn and should have taken steps to return/correct.

It is not sound legal reasoning to say that because you have never been officially terminated and that someone is signing your checks that a nominal log in every day means you are being paid for working.
posted by Pax at 5:43 AM on July 30, 2013

Also, anonymize your post.
posted by anthropomorphic at 11:59 AM on August 1, 2013

Are you James Alexander?

Forgotten Employee

Seriously though, you may enjoy the above.

I think something being missed here is your comment that the company has since been acquired and gone through a merger. This makes me think it could be a long, long time before you're discovered.

I'd be interested in hearing from a large corporate PR person what would happen if this guy sent in a letter of resignation. Any chance it would just be processed normally without the HR person doing any digging? Especially given the corporate restructuring?
posted by imabanana at 11:26 AM on August 2, 2013

They can almost certainly sue you. They might not win, but if they have 30k employees, they have money to spend that outweighs you.

And seriously?

You're skimming money here, and are likely committing a crime. If you believe they're paying you by mistake, which seems to be pretty clear in your post, then it's not likely to be your loot to spend. If you think that, when you call HR, they'd say "nope, that's intentional!", I'd feel free to cash the checks... but that's not the case here, is it?

Call your boss' boss until you get someone on the phone. If that fails, call HR directly. If that fails (and in the meanwhile), do not cash the checks until you can find someone to OK you doing so.
posted by talldean at 8:22 AM on August 3, 2013

Response by poster: I really appreciate everyone's responses.

I wanted to provide a final update to my strange situation that has since managed to become even more bizarre.

About a week after asking this question here, I received an IM from the person who's apparently now my boss (My old Boss' Boss) He said he needed to speak with me and asked me for my phone number. I was unbelievably nervous but at the same time somewhat relieved that my odd situation was finally going to be resolved..

He called me, and the first thing he said was "Listen... I owe you an apology".

I had no idea what on Earth he could owe me an apology for, but he went on to say that somehow he'd overlooked my "Annual performance review", then read some of his comments about my performance along the lines of "Mr. *** is a valuable asset to the IT/Infrustructure organization" etc.

I've been employed by this company now for 6 years - when it comes to annual performance evaluations, you either get "Needs Improvement" which means it's going to be your last annual review, "Meets Expectations" which means you keep your job, or "Exceeds Expectations" which as a general rule, NOBODY gets.

He gave me an "Exceeds Expectations", as well as a 2.5% pay raise which was retroactive to January 1st (i.e. my next paycheck was huge)

The whole conversation felt... Extremely odd. Almost surreal. I didn't even know how to respond..

While I didn't say "Hey, I've been doing essentially nothing for like... forever now." I did tell him that I didn't have enough work to keep me busy, and he said he'd try to get me involved in some new projects. A few days later he gave me a project that took an hour or two to complete, but I haven't heard from him or been given any work since (~2 months ago)

On the bright side, I guess if I'm faced with a lawsuit from my employer I do have a PDF copy of a very recent glowing annual review written by an executive director.

On the not-so-bright side, I'm still collecting weekly paychecks for doing what basically amounts to absolutely nothing while sitting at home all day. Which in addition to the moral implications is incredibly boring to say the very least.

Again, thanks to everyone here for all of your input - it's sincerely appreciated.
posted by ninepin at 9:15 PM on October 4, 2013 [1 favorite]

So, after 25 different people, including several practicing attorneys with experience in this field and in your state, recommended that you seek legal advice, did you speak to a lawyer? What did your lawyer say? Did you update your lawyer in January when you accepted a raise and did not tell the company what was going on?
posted by decathecting at 10:14 PM on October 4, 2013 [3 favorites]

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