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Employer not honoring wage agreement Virginia

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  • Employer not honoring wage agreement Virginia

    When I was hired, I was required to fill out a change in personnel status form. The upper section of this form shows the date I was hired and our agreed wage. The lower portion is for employment separation purposes. After a couple of weeks I noticed my direct deposits seemed quite low but could not access the electronic pay stub yet. It was about a month before I was finally able to see my pay stubs and sure enough, my rate was $7 hr less than our agreement.

    After bringing this up to my manager, I was assured that this would be corrected. Well, weeks and weeks turned into months and months of reassurance that he would fix this and nothing was ever done. I knew I was being strung along but my wife and I really needed the health insurance as we were going to start a family.

    Finally at tax time, I discovered my copy of the personnel status form with our agreed wage on it. I left a copy of this form on his desk to help him get the ball rolling but upon coming in the next morning, I was "laid off".

    It's been nine months of back and forth email that seemed promising at first of recovering these wages but I think they're hoping this just goes away. They also still have not offered me Cobra and yes, they are Cobra eligible. There is a section on the bottom of the status form that they were supposed to present to me upon separation to initial that Cobra rights were explained and forms provided but this never happened. Even after having to go back to office twice to drop things off. I believe that because my agreed wage was on this form, they avoided having me fill out bottom Cobra section.

    I'm not concerned about the way I was terminated but I would like to know if I should go after the almost $12,000 discrepancy. Also, what kind of damages or waiting penalties should I pursue concerning the wages and Cobra issue.

  • #2
    There probably isn't much recourse over being underpaid but you can always talk to a lawyer in your area to see if anything you signed or the circumstances under which you accepted the offer provided any recourse.

    If you have not been offered COBRA, contact the DOL https://www.dol.gov/ebsa/contactEBSA...ssistance.html
    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.

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    • #3
      You should talk to a lawyer in your state. In general, an employer has to pay the "agreed" rate. In the absence of a written contract requiring a specific rate during a specific period, the employer can change the rate prospectively and the employee's choice is to accept the lower salary or leave. An employer cannot pay a lower rate for hours that the employee already worked prior to the change.

      Your issue is much more complicated. You continued to work after you knew that you were being paid at a lower rate, but you say you told by your manager that the pay rate would be corrected. Based on your side of the story, if you can prove that the manager was assuring you that were entitled to the higher rate and would be paid that amount, you should be paid that amount. On the company's side, however, the fact that you continued to work at the lower rate after receiving the first paycheck looks like you accepted the lower amount. Your comment that "I knew I was being strung along but my wife and I really needed the health insurance as we were going to start a family" makes it sound like you were willing to work for the lower amount rather than insist on the higher rate and possibly be out of a job.

      I'd say it is a toss up, but I would certainly talk to a lawyer before I walked away from $12,000. In any event, it seems like you should have received the agreed amount for the first pay period if the first notice you had that they were paying you $7 and hour less was when you received your first check.
      David K. Staub (www.illinoisbusinessattorney.com)
      Forum posts are not legal advice, are for informational and educational purposes only, and are not a substitute for proper consultation with legal counsel.

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      • #4
        Yes, thanks, I have already contacted DOL on the Cobra matter. That should help procure damages when going after the unpaid wages and prevent this from happening to anyone else. One would think a wage agreement will hold up in court but stranger things have happened. I plan on having an attorney send a demand letter as my letter was probably not taken seriously. Should we send this to my former branch manager, regional manager, or owner of the company.

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        • #5
          I would copy all three on the letter from an attorney.

          That said, you stated you filled out the form. Who wrote in the wage? You or HR/manager? If it was you, do you have anything else in writing? Did you document who you spoke to and when about the wrong wage? If not, do you best to put that timeline together prior to seeing an attorney.

          If they signed the form with the wrong rate, it will depend on whether they can claim a mistake in fact and that you knew over time that you were at a lower rate (since you continued to receive paychecks and continued to work). Did your paycheck stub have the payrate on it?

          However, I agree it is worth visiting with an attorney to see whether that form rises to an agreement or contract such that it binds them to what could be a mistake. They could easily have filled out a blank one for your termination and dealt with the COBRA that way...so I have to agree if does sound like they are trying to hide something! But again not sure of your recourse.
          Last edited by hr for me; 01-29-2015, 08:33 AM.

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          • #6
            I do not disagree with anything posted above but I do want to clarify one point. Whether an employer can lower a wage retroactively is state specific. It is not prohibited by the FLSA. Most states, including the OP's, do not allow it but there are a few states that will take no notice or action - at least under wage and hour law. I'm not saying an argument couldn't be made under contract law in any state but that would depend on situation-specific info.
            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.

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            • #7
              Great advise and questions to think about. I do have some email interactions between myself and HR from when I finally went over my branch managers head. I do not have texts between my manager and I as they were on the company phone that was returned. I did write our agreed wage on this form and I thought this could be of concern but, I was able to obtain photos of everybody's (6) agreements as they were strone across the office one morning and they are written in by the employee like mine is. Seeing that the data entry clerk, receptionist and part time office help were earning a higher hourly rate than me also lead me to believe that this discrepancy was a mistake. I even put a packet of 10 years worth of W2's together for him to see if he could find logic in what I was being compensated. I don't know if these arguments are worth bringing up but in the specialized field that I am in, the rate agreed on was still on the low side of industry standard and I certainly wouldn't have accepted $7 hr less than that. I don't mind taking one step backwards but I do mind taking twenty thousand.

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