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Late paycheck, seeking penalties. Should I contact employer or pursue lawsuit? Oregon

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  • Late paycheck, seeking penalties. Should I contact employer or pursue lawsuit? Oregon

    I have a dilemma here. My paycheck was issued 7 days after my last day of work, for which I gave a full two-week notice. I consulted with an attorney and the attorney said I am entitled to at least 7 days of penalty fees.

    At this point I am debating whether I should contact my former employer (a large retail chain headquartered outside of Oregon, though I worked at one of its Oregon locations) and personally seek the penalty fees or if I should hire this attorney and sue. The fees would amount to over $500.

    The reason I'm apprehensive about pursuing the lawsuit is that, if there's a good chance I could collect the fees without suing then I'd prefer that route, and that, as far as I can see, I'm also taking on a risk by hiring an attorney.

    Some guidance here would be REALLY appreciated. I've never hired an attorney before.

  • #2
    Normally, you can report the employer to the state department of labor and they will pursue the issue on your behalf.
    I am not able to respond to private messages. Thanks!

    Comment


    • #3
      Thanks for the reply. Funny thing is, I called BOLI up to answer a few questions and they literally told me that it would do me no good to file a report and to just talk with an attorney. Apparently, they only pursue claims of lost wages, not late paychecks that have been received.

      So, I'm at a standstill as to whether I should try to reach out to my former employer and see if they're willing to pay me out of court, or whether I should hire this attorney. Again, I'm just worried about the risk involved in hiring an attorney. I'm leaning toward contacting them and giving them a chance, but I'm sure they'll want to see my evidence. At that point I figure they could deny it and use the evidence to start building an early case, and I'm not sure how that would affect everything.

      Comment


      • #4
        At least as I read your post, the employer blew past the statutory payout date

        Absent some debate over weekends or mailing vs receipt date, is not 7 days late pretty darn clear? Is there any grey area you haven't posted.?

        At least as far as the statute goes it's sort of there to protect the little,guy to recover the penality wage ..so if the employer missed it by 3 days or 7. Or 40...( capped at 30). .the law allows for court to award reasonable attorney fees If you prevail .

        My read is BOLI does NOT handle penality wage claims

        you might think it smart for employer to,settle ...others may wait until they feel heat from attorney ..

        Your call.

        Comment


        • #5
          Thanks for that.

          I did a little more reading and although it seems pretty clear to me, I'm not entirely fluent in legalese, so clarification would be appreciated. If you visit this URL: https://www.oregonlegislature.gov/bi...013ors652.html and check out "652.150 Penalty wage for failure to pay wages on termination of employment.", specifically (2)(b), it would seem that I am not entitled to as much as I previously calculated (over $500) because I did not submit a notice of nonpayment. Therefore, I am only entitled to 100% of my paycheck.

          Am I reading this correctly? My lawyer seemed to think it didn't matter...

          Here's the entire section in question:

          652.150 Penalty wage for failure to pay wages on termination of employment. (1) Except as provided in subsections (2) and (3) of this section, if an employer willfully fails to pay any wages or compensation of any employee whose employment ceases, as provided in ORS 652.140 and 652.145, then, as a penalty for the nonpayment, the wages or compensation of the employee shall continue from the due date thereof at the same hourly rate for eight hours per day until paid or until action therefor is commenced. However:
          (a) In no case shall the penalty wages or compensation continue for more than 30 days from the due date; and
          (b) A penalty may not be assessed under this section when an employer pays an employee the wages the employer estimates are due and payable under ORS 652.140 (2)(c) and the estimated amount of wages paid is less than the actual amount of earned and unpaid wages, as long as the employer pays the employee all wages earned and unpaid within five days after the employee submits the time records.
          (2)(a) If the employee or a person on behalf of the employee submits a written notice of nonpayment, the penalty may not exceed 100 percent of the employee’s unpaid wages or compensation unless the employer fails to pay the full amount of the employee’s unpaid wages or compensation within 12 days after receiving the notice.
          (b) If the employee or a person on behalf of the employee fails to submit a written notice of nonpayment, the penalty may not exceed 100 percent of the employee’s unpaid wages or compensation.
          (c) A written notice of nonpayment must include the estimated amount of wages or compensation alleged to be owed or an allegation of facts sufficient to estimate the amount owed. Submission of a written notice of nonpayment that fails to include the estimated amount of wages or compensation alleged to be owed or an allegation of facts sufficient to estimate the amount owed does not satisfy the requirement for written notice under this subsection unless the employer has violated ORS 652.610, 652.640 or 653.045.
          (d) For purposes of determining when an employer has paid wages or compensation under this subsection, payment occurs on the date the employer delivers the payment to the employee or sends the payment by first class mail, express mail or courier service.
          (3)(a) For purposes of this section, a commission owed to an employee by a business that primarily sells motor vehicles or farm implements is not due until all of the terms and conditions of an agreement between the employer and employee concerning the method of payment of commissions are fulfilled. If no such agreement exists, the commission is due with all other earned and unpaid wages or compensation as provided in ORS 652.140.
          (b) Notwithstanding subsection (2) of this section, when there is a dispute between an employer and an employee concerning the amount of commission due under paragraph (a) of this subsection, if the amount of unpaid commission is found to be less than 20 percent of the amount of unpaid commission claimed by the employee, the penalty may not exceed the amount of the unpaid commission or $200, whichever is greater.
          (4) Subsections (2) and (3)(b) of this section do not apply when:
          (a) The employer has violated ORS 652.140 or 652.145 one or more times in the year before the employee’s employment ceased; or
          (b) The employer terminated one or more other employees on the same date that the employee’s employment ceased.
          (5) The employer may avoid liability for the penalty described in this section by showing financial inability to pay the wages or compensation at the time the wages or compensation accrued. [Amended by 1957 c.244 1; 1991 c.966 2; 1995 c.501 1; 2001 c.690 1; 2003 c.779 1; 2005 c.664 2; 2011 c.348 2]

          Comment


          • #6
            That is not how I would read it..but my read does NOT count. The law has been around for a while and my guess is that your question about notice or lack of notice and penality wage has some pretty well established answers / case law among those who litigate such matters in OR

            If your lawyer is not confident as to the answer to that lack of notice point you might want to ask an attorney in OR who litigates such matters on a more frequent basis before you sign up with any specific counsel.

            Comment


            • #7
              The challenge is that the attorney will no doubt charge you for the cost of his services if you decided to sue. Only you can decide whether the amount that you are owed, minus whatever fees the attorney will chage, is worth it to you. You could send a demand letter on your own to the employer or you could file in small claims court without an attorney.
              I am not able to respond to private messages. Thanks!

              Comment


              • #8
                The recovery of reasonable attorney fees is built into the OR law when seeking unpaid wages .

                Per some citations sources, the definition of OR wages INCLUDES penality wages , Wyatt v Brody 163 Or App 526 ...but I did NOT read it nor would it count if I did ...

                Comment


                • #9
                  typo..it's Body not Brody

                  Comment


                  • #10
                    Personally this is not one I would pursue as long as I had received all wages due to me. The headache and time it will take (even if you somehow recover attorney's fees) will still mean you only get the maximnum of $500 minus court filing fees minus your own lost time. And in many, many states, final pay for an employee who resigned with notice is not due until the next regular paycheck date, especially if you give notice (rather than the employer terminating your employment). Granted OR state law protects you more than most states, but there's not a consequence to the employers to make them stick to the law if the state DOL isnt' willing to go after the $s for you. (Other states that have a penalty, like CA, take some or all of the penalty back to the state rather than giving it to the employee sot the state has a stake in the game and is more willing to go after the employer).

                    But that's me. Just not a battle I would want to fight, even if there was a chance I could win. Especially if there is any chance in the future that you would be wanting to apply for any job at that employer or any associated employer.

                    Comment


                    • #11
                      I do see hr for me's point ...and if you were paid in full properly but a few days late ..even if the law suggests you have a winnable point in OR it may just be the thing to move on . Per your math you may get a 7 days of pay tops ..and one attorney on the employer side in OR warns employers that a simple $200 goof can wind up as a $25,000 set of legal bills.

                      Absent some particular bad things by employer...not every goof warrants a fight ..even if odds are you are right.

                      Now that's just a personal view and nobody asked about that ...

                      I'm not one to shirk from a fight ...and I've done a wage fight in past and sort of won the point , got paid ...but not ever goof is a reason to fight .....might be time to suck it up and move on?

                      PS to pick a fight also leaves a paper trail that could come up on a background check with potential next employer .....not cool for chump change issues....

                      Comment


                      • #12
                        Originally posted by Raster View Post
                        PS to pick a fight also leaves a paper trail that could come up on a background check with potential next employer .....not cool for chump change issues....
                        Thanks for all the input, guys. You make a lot of good points. I'm especially worried about this point, Raster, because it's something that crossed my mind, as well. Can potential employers actually find this information when doing background checks, and decide not to hire you for it?

                        I mean beyond a reference you've listed who divulges that kind of information.

                        Comment


                        • #13
                          If you file a lawsuit, of course they can. Those are public record.
                          The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

                          Comment


                          • #14
                            Maybe. Do you participate in social media such as Facebook? It is pretty common for employers to look there, or talk to contacts who know your prior employers. If you mean "men in black" knocking on people's doors, probably not unless your job has a security clearance. But it is very easy to Google someone and see what pops. Or to check an in house HRIS for employees with a similar prior employer as a candidate.
                            "Reality is that which, when you stop believing in it, doesn't go away".
                            Philip K. **** (1928-1982)

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