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Owed Pay, please advise!

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  • Owed Pay, please advise!

    I started out on a part time basis last January (2005)
    This was intended to be a temporary situation because
    I had a seasonal place of employment elsewhere.
    I started out working about 3 shifts a week (20 - 25
    hours). I had asked the supervisor at the beginning about
    any paperwork to be filled out, he said there was none
    to be filled out, since the owner just paid out cash.
    The method of payment was that the owner would ask me how
    many shifts I worked, and they would pay in cash. From
    the beginning, and for about 2 weeks I was paid
    $xxx for those hours.
    after about 2 or3 weeks , my hours were increasing to
    about 35 a
    week and the cash the owner would give me always was about
    the same hourly rate as when I worked 20 - 25 hours a
    week ,I had stayed on for quite some time since by the end
    of February i knew I was not going to go back to
    my main job, and the owner said I
    was welcome to stay there as long as I
    wished. At no time was there a discussion about the
    hours I would work or at what rate per hour, as most
    employers would do).Eventually my hours per week
    stayed about the
    same (about 35 hours) so the owner at that point stopped
    asking me what shifts I worked, and continued to pay
    me for these hours, $700.0 still).
    By July, due to an error on her part, they got 1 week
    behind in paying me . I let it
    ride for a while because
    I knew they was amidst a hectic period and believed
    that eventually he would make good on this. I also
    mentioned this to the supervisor who claimed he
    was in the same situation but that he would speak to
    her ( this was approx. 2 months later ) - nothing ever
    happened.
    At one point in mid -employment period the owner took issue with me
    because even though any discussion stopped regarding
    how many hours I worked (I was always working at least
    35 hours ) he claimed he thought I was working full
    time ( by that he means 45 - 55 hours, as many of his staff do), and decided
    to cut my pay $100 a week.
    On Nov 12th, I gave my two week notice to the supervisor.The
    following week (11/18) when I asked to be paid the
    owner said, "No, actually you owe me, but I spoke to
    the supervisor about a possible situation so you can speak
    to him about this"( There were other employees present
    at that conversation, mostly hispanic, but one who
    clearly speaks and understands English fluently, we in
    fact had a conversation regarding this comment shortly
    after)So when I spoke to the supervisor the following
    morning, the supervisor said thee owner's suggestion was that
    possibly in
    the future if they needed someone to cover an
    occasional shift,perhaps I would be called upon to
    cover these( I'm assuming he meant without
    pay) to "make it up to her" (He means all the weeks
    that I was paid $700).But, he says, he didn't
    see that as being necessary.
    At this point I demonstrated to him by tallying up the
    hours from the handwritten (and often hot accurate,
    since on many occasions I came in early, left late,
    and put in extra time on special projects ) schedules
    he never threw away ( there are no time cards used at
    this place) all the weeks/ hours I worked and what I'd
    been getting paid, so he could see that i was not
    getting paid over and above what roughly my hourly
    rate was, and that the error was on the owner's part.I still
    have a problem with the idea that between these two
    people no one knew for sure what my schedule was or
    how much I was getting paid.......
    It seemed that all this back and forth was not
    bringing any resolution so I approached the owner myself,
    and explained to him that as of the week ending 11/20,
    this was three weeks I was now due.
    It was then that he told me I owed her $2400 to
    compensate for what I owed her due to this
    "misunderstanding".
    The following day I called the supervisor and told him that
    if the owner has a change of heart and agrees to pay me I'd
    gladly work what was to be my last week at this place,
    otherwise I cannot justify working that final week
    with the prospect of not getting reimbursed. I haven't
    heard a thing since.

    Question is ,what recourse do I have here,since such poor records were kept? Also , many questions regarding filing taxes, using 1099 form,etc. but that is another forum.

    Thanks!
    Last edited by lglese; 12-14-2005, 08:26 AM.

  • #2
    The MA State Fair Pay Act, and other state laws (including c.149, sec.27C, 148 and 150) and federal laws have record keeping requirements that employers maintain accurate records of your hours and pay rate for certain periods of time.

    Also (as it is unlikely that you would qualify as an independent contractor), there are witholding requirements for the IRS, as well as unemployment insurance and workers compensation requirements.

    Your pay rate ($700 / 35 hours/wk = $20/hr.) appears to be above minimum wage, although you didn't specify. In addition, you don't specify your work, but I'll assume that you are a non-exempt employee. In this case, that means your employer must pay you on an hourly basis. But you don't seem to have an overtime issue, although your fellow employees might if they weren't compensated for their hours in excess of 40 hrs/wk. (and perhaps they should be posting here, too).

    You may also be entitled to other benefits, depending upon their employee handbook.

    In any case, this employer seems to have violated quite a few rules, and you may be entitled to your money - possibly three times the amount owed, plus attorneys fees and costs of collection.

    I hope that helps get you started through the thought process.

    Things you'll want:

    1. copy of the employee handbook, if any
    2. document your hours and pay rates as best you can remember, noting any conversations you had
    3. talk to your co-workers and see if they have similar problems
    4. collect any pay stubs, if you were you ever paid by check
    5. any tally of hours they might have kept for you
    6. think of anyone who could testify as to the hours you worked, or any other way you might prove it
    7. did you file tax returns for your income during your time there

    That should get you started.

    Best,
    Phil
    This post is by Philip Gordon, a Massachusetts employment attorney (www.gordonllp.com).

    This post is NOT legal advice. It is for general/educational information purposes only. You should not rely on this post if you are making decisions, and it does not create an attorney-client relationship. This post may be considered "advertising" under the MA professional rules for attorneys.

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