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No paperwork completed - Employer refuses to pay - California

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  • No paperwork completed - Employer refuses to pay - California

    I was brought on as a Director of Marketing and Business Development for a magazine.

    After being hired, and quitting my old job, I was told that I would not be signing any paperwork. I should consider myself a "partner", not just an employee. I would benefit from everything that I helped build.

    I was required to be in the office 7-8 hrs a day. I also was called frequently at night, and often was at my computer working with one of the owners to solve technical issues. This went on for about 45 days.

    I set up an online store, helped to secure a large sale, built up the contact list, and solved several technical issues that they had had for years.

    My work laptop was provided by the employer "partner". A press release also went out announcing that I joined the company.

    After securing a large sale (sold part of our convention booth space), I went on a vacation that I had told them about ahead of time. A day into my vacation I found that I was locked out of all my accounts.

    Attempts to contact them were not responded to for over a month. Perhaps 2.

    They finally sent me an email telling me that they were not going to pay me because I was supposed to create ad sales for the magazine, and didn't bring in new ads.

    This wasn't ever told to me ahead of time. So I made it clear to them that I expected to be paid. I understood that their financial situation wasn't very strong, and I would accept minimum wage if it would make it easier for them.

    A few days later I received an angry voice mail stating that they had laid out a business plan and I failed to follow it. (false) One of the owners was with me every day directing me as to what I should be doing. I followed that person's advice because she had over 20 yrs experience in publishing, while I had come from a different industry. But I did make it known when I disagreed.

    So my question is, without any paperwork, can I still win a suit to be paid?

    Also, there are two other employees who have confided in me that they have been paid FAR below minimum wage. But they also have no paperwork proving employment. I want to make sure this doesn't happen to others. I've seen them posting openings on job boards.

    Is there someone I can report this to? I believe they are taking advantage of people by preying on their ambitions and hopes.

  • #2
    Short answer. File a wage claim with CA-DLSE. It works or it does not.

    It will arguably be very difficult for the employer to argue that you are not due minimum wage and overtime (if applicable). They can (maybe) argue that you are Exempt under one of the White Collar exceptions, but that would likely create a $640/week minimum. I do not expect CA-DLSE will be impressed with the "you were a partner" argument absent any supporting documentation. On the other hand, CA-DLSE thinks whatever they think. I could see CA-DLSE maybe thinking this mess needs to be resolved in court.

    Longer answer. You have not behaved in a very reasonable manner. Becoming a so-called partner with no pay and no formal agreements is not something a reasonable person does. I am not saying that you do not have a reasonable argument (in part) but there are reasons for CA-DLSE to be skeptical about this story. If I was CA-DLSE, I would have problems with both parties.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

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    • #3
      Originally posted by DAW View Post
      Short answer. File a wage claim with CA-DLSE. It works or it does not.

      It will arguably be very difficult for the employer to argue that you are not due minimum wage and overtime (if applicable). They can (maybe) argue that you are Exempt under one of the White Collar exceptions, but that would likely create a $640/week minimum. I do not expect CA-DLSE will be impressed with the "you were a partner" argument absent any supporting documentation. On the other hand, CA-DLSE thinks whatever they think. I could see CA-DLSE maybe thinking this mess needs to be resolved in court.

      Longer answer. You have not behaved in a very reasonable manner. Becoming a so-called partner with no pay and no formal agreements is not something a reasonable person does. I am not saying that you do not have a reasonable argument (in part) but there are reasons for CA-DLSE to be skeptical about this story. If I was CA-DLSE, I would have problems with both parties.

      Thanks for the response.

      I agree that it was stupid if me to work with them without any contract of some sort. The industry that the magazine covers is something I am passionate about, and the owner was the founder of a fairly major magazine in that industry from the 80s. A minor celebrity. The magazine I worked on was an attempted re-launch of the original. In a sense, you could say I was a little star struck. The same holds true of the other employees there. I believed all the talk about how honest they were. And that I didn't need to worry. Very foolish of me. But I have no doubt that they'll continue to find people that will be just as foolish as I was unless they are disciplined by the state for illegal labor practices.

      Also, I had already quit my prior job when I found out that no contract was available to be signed. So without a another hob, and in a tough labor market, I attempted to do a good job.

      I am curious how you think being "unreasonable" might play out in small claims court if I attempt to sure for at least minimum wage compensation.
      Last edited by Reflexx; 08-17-2012, 08:37 PM.

      Comment


      • #4
        I do not know. Small claims court means that you are playing Wheel of Fortune with which ever judge you draw. I would stay with a CA-DLSE wage claim. No sure thing, not there, not small claims court, not anywhere.
        "Reality is that which, when you stop believing in it, doesn't go away".
        Philip K. **** (1928-1982)

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        • #5
          Thanks again. I appreciate your help.

          I was originally thinking of going directly to small claims. But now I will try CA-DLSE first.

          Comment


          • #6
            It's not stupid to work without a contract or paperwork, plenty of people work under this type of arrangement and as long as applicable laws are being followed, everything's fine.

            What will make a judge or the DLSE suspicious is the fact that you worked an entire 45 days (and then blithely went swanning off on vacation!) without ever once asking when you were going to get paid or when was payday, etc. Makes it look like you too thought you were a partner, at least until they shut you out, at which point you suddenly decided you were an employee.

            Comment


            • #7
              That is what was bothering me. Basically employment issues are one type of law (and recourse) and partnership issues a different type of law (and recourse). The post feels a bit like tring to straddle the line between two different laws and since CA-DLSE is very much employment law only, I would be unhappy if I was them. If we ignore the partnership issues, the poster has a strong case. Add partnership to the mix and the situation becomes confused. I could see CA-DLSE maybe saying that this is someone else's problem. Of course I could see a smalls claims court judge saying exactly the same thing. The more this look likes a straight up partnership displute and the less it looks like an employment law issue, the greater the chances people like CA-DLSE and small claims court are going to say "not my issue. Get a lawyer and take it to a general court action".
              "Reality is that which, when you stop believing in it, doesn't go away".
              Philip K. **** (1928-1982)

              Comment


              • #8
                Originally posted by eerelations View Post
                It's not stupid to work without a contract or paperwork, plenty of people work under this type of arrangement and as long as applicable laws are being followed, everything's fine.

                What will make a judge or the DLSE suspicious is the fact that you worked an entire 45 days (and then blithely went swanning off on vacation!) without ever once asking when you were going to get paid or when was payday, etc. Makes it look like you too thought you were a partner, at least until they shut you out, at which point you suddenly decided you were an employee.
                I did ask about getting paid. But was told that we'll all discuss it together as soon as the next issue of the magazine was published.

                I also had this out of country vacation planned for a year, and this was something that we discussed ahead of time.

                As for my status as employee or partner, I knew that I wasn't an actual partner is the legal sense. I knew that they could choose to let go of me at any time unless I had paperwork to make me a member of the LLC. I looked at this as being an employee with the opportunity to earn a position as a member. After all, I found the place by answering an employment ad.

                As a person that worked at the company, I was actually either an Independent Contractor or employee. But the fact that I had direct supervision, had to carry out a variety of tasks through that supervision, and had to report to the office on a regular schedule leads me to believe that legally I was an "employee", regardless of what I thought my status was. When an owner says, "Drop the plans you have for long term viability and start making sales calls" that does seem to be going into employee territory. Am I wrong?

                And wouldn't the fact that they could just get rid of me without any warning also indicate that they didn't believe me to have a partner status? That would indicate that in their own minds, I was either a contractor or employee.

                I also have a voice mail where the owner did refer to another "partner" as an "employee".
                Last edited by Reflexx; 08-20-2012, 11:26 AM.

                Comment


                • #9
                  We need to be very clear on something. You are either an employee or a partner. Legally you are not both. Pick one. Assuming that you choose "employee", then you file a wage claim with CA-DLSE and the "P" word does not leave your mouth except in response to a direct question by CA-DLSE that requires you to use that word. Every single time the "P" word leaves your mouth, you are hurting yourself. Clear?

                  The other people are going to argue that you are NOT an employee. That you were never an employee. Of course they will say you were not fired because you were a partner. That they ended your part of the partnership. They will (correctly) say that ending the partnership happens all the time in this country. And if as a former partner you have a problem with that, then you are required to get a lawyer and go through a general court action.

                  And every time you say the "P" word for any reason you are helping them make the case that this is a dispute between partners that needs to be settled in a general court action. And if you keep saying the "P" word, CA-DLSE or the small claims court judge will likely agree with them. If you are trying to claim that you are an employee then the very last word you should want to say is the "P" word, because it cannot possibly help your case.
                  "Reality is that which, when you stop believing in it, doesn't go away".
                  Philip K. **** (1928-1982)

                  Comment


                  • #10
                    Originally posted by DAW View Post
                    We need to be very clear on something. You are either an employee or a partner. Legally you are not both. Pick one. Assuming that you choose "employee", then you file a wage claim with CA-DLSE and the "P" word does not leave your mouth except in response to a direct question by CA-DLSE that requires you to use that word. Every single time the "P" word leaves your mouth, you are hurting yourself. Clear?

                    The other people are going to argue that you are NOT an employee. That you were never an employee. Of course they will say you were not fired because you were a partner. That they ended your part of the partnership. They will (correctly) say that ending the partnership happens all the time in this country. And if as a former partner you have a problem with that, then you are required to get a lawyer and go through a general court action.

                    And every time you say the "P" word for any reason you are helping them make the case that this is a dispute between partners that needs to be settled in a general court action. And if you keep saying the "P" word, CA-DLSE or the small claims court judge will likely agree with them. If you are trying to claim that you are an employee then the very last word you should want to say is the "P" word, because it cannot possibly help your case.
                    Understood. Thanks.

                    Comment


                    • #11
                      To an employee, or someone who believes he's an employee, the only acceptable answer to the question "when will I be paid" is "payday is on X date." The fact that you deemed the answer "we'll discuss that later" to be acceptable convinces me (and will convince others, such as judges) that you believed yourself to be a partner.

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                      • #12
                        I had no ownership, and truly never believed I did. I wasn't bought out. I worked under supervision for the promise of pay when a task was completed by them. (publishing if the magazine)

                        So this is likely something that would have to go to a Superior Court?

                        It's starting to sound like it's more than a simple wage dispute.

                        I do expect to be compensated for the work I contributed, and that they still have, including their online store and a large convention sale.

                        I don't expect that it's legal to bring people in, tell them they are "partners", have them complete thing you had trouble getting done, and then letting them go while keeping the benefits of the work produced with no compensation given.

                        I am not looking for a large amount of compensation. But is this too complex for Small Claims?
                        Last edited by Reflexx; 08-21-2012, 06:36 AM.

                        Comment


                        • #13
                          I'd just file a wage claim as that is free and chances are you are an employee.
                          I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

                          Comment


                          • #14
                            I'd send them a letter demanding your pay and penalties under California law. Check out http://www.dir.ca.gov/dlse/FAQ_WaitingTimePenalty.htm - it seems to apply here. When you terminate, and they don't pay you, they owe you a day's wages for each day they don't pay you, up to 30 calendar days, on top of your wages due. The statute allows you to collect attorney's fees if you have to sue, which you should mention, since it gives them incentive to pay you quickly.
                            I am not an attorney, and don't play one on TV. Any information given is a description only and should be verified by your attorney.

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                            • #15
                              You can either file a wage claim with the Ca. Division of Labor Standards Enforcement or bring a court action against your employer to recover the wages that are due you and to make a claim for the waiting time penalty.

                              I would file a wage claim with the Ca DLSE as suggested previously.
                              Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                              Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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