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  • I overpaid my employee in NYC New York

    My question involves workers compensation law for the state of: New York

    I ran a summer school this summer, and paid my teacher with a check, but the administrative office made a mistake and wrote the check that was $1800 over the amount that she was supposed to be paid. I called and left the teacher two voicemails and sent her an email regarding the matter, and she has been ignoring me or screening my calls (she used to respond to me in a timely manner). It's been two months since the summer. She basically ran away with the money. What can I do to get my money back?

    It's more complicated than that:
    - I have no contract with her. It was all a verbal agreement that she would be paid XYZ amount per hour.
    - She filled out a W-9 form for the check and I have her legal information
    - However, she moved to another state shortly after the summer. She sent me her "new" address, but I think its a temporary/friend's one.
    - Also, when the office handed me the envelope with the check in it, I thought it was a sealed envelope so that's why I did not double-check the check amount. But come to think of it, it might not have been sealed afterall - so does this make it my fault and I should just suck up my losses?
    Last edited by yl358; 10-16-2011, 01:20 PM.

  • #2
    But come to think of it, it might not have been sealed afterall - so does this make it my fault and I should just suck up my losses? .

    No. That does not make it your fault. Well, it makes it your fault that it didn't catch the error, but it's not what makes it difficult if not impossible for you to get your money back.

    This is:

    I have no contract with her. It was all a verbal agreement that she would be paid XYZ amount per hour.

    With nothing in writing, how do you plan to prove what she should have been paid? If she claims the agreement was for the higher amount, it's your word against hers.
    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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    • #3
      You mentioned W-9. Those are associated with vendors (including independant contractors), not employees. If the payee is not an employee, then we are not talking labor law per se. If you think this worker was an employee, then you should have used a W-4, withheld taxes and otherwise treated this worker as an employee for all labor law purposes.

      Basically you can take the other party to court. Both sides tell their stories and present their evidence to a judge and the judge gets to decide whose stories/evidence the judge likes best. But until/unless you get an actual judgement, the other party does not owe you anything. You just have a story at this point.

      You mentioned you have no contract. Do you have anything other then your word that supports your opinion?
      "Reality is that which, when you stop believing in it, doesn't go away".
      Philip K. **** (1928-1982)

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      • #4
        Thanks for the responses.

        It does come down to a my-word-vs-her-word situation. However, let me present the big picture:

        1. It was a verbal agreement that she would be paid 30 dollars/hr. If you work this out mathematically for the hours that she worked, works out to be $3360 for the summer. I paid her every two weeks, and still had to pay her for one more paycheck.
        2. The Reverend wrote me an email saying "how much money should I write on the last check?" and I replied "1440 dollars" in the email. [Can I print out this email as proof?]
        2. Due to some lapse in judgement/accuracy, the office mistakenly wrote in "3360" on that last check

        It was a verbal agreement from a teacher-to-boss relationship, but I had a contractual relationship with the church, and in this contract it outlines that I was paying the teacher "$30 an hour for a total of $3360" in this contract. Can I use this as proof even though the teacher was not involved in this side of the business?

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        • #5
          If it comes to a lawsuit, you can use any of this as evidence. It will be up to the judge whether or not it is "proof".
          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


          • #6
            Agreed. Both sides tell their stories. More/better evidence improves the story. But at the end of the day, the judge gets to make the call. There is nothing in the law that makes your side of the story the "right" story.
            "Reality is that which, when you stop believing in it, doesn't go away".
            Philip K. **** (1928-1982)

            Comment


            • #7
              Alrighty, these responses help. Now, let's say I take her to court. Since there was no contract or anything. The teacher also has no documentation, meaning, she has no proof that she was NOT overpayed. What would she say to the judge? I will show the judge the aforementioned documention (in the previous posts) and the teacher will only have her word to go by. This is my gameplan. But am I missing something that makes this gameplan totally defunct? Thanks for all your help so far!

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              • #8
                You will encounter numerous practical problems in successfully suing this teacher/contractor and in ever collecting the overpayment. The following considerations are only the ones which jump out at me at this time. There are surely others.

                First, you have to serve her with a summons and complaint. Since she lives out of state, you will likely have to hire a company to endeavor to effectuate service in person. (If she is not accepting your telephone calls, she will not likely sign for certified mail – a far cheaper alternative form of service – from you or anyone else.)

                Second, if you ever succeed in serving her, you then have to prevail in small claims court. If she contends that all of the $5160 she received was what she was owed based on her understanding of the verbal agreement, do you have any documentation from her or to her which would contradict such an assertion? Absent such documentation, your case comes down to “he said, she said.”

                Third, presuming you serve her and you prevail at court, she still may not pay you. You would then have to have the court issue a post-judgment attachment order and attach her bank account or some other assets with said order in an effort to satisfy the judgment. If she lives in another jurisdiction and has no assets in your state, you have to go to a court in her state to issue its own order essentially acknowledging the first court’s order. Moreover, if she is truly "judgment proof," i.e., no substantial assets anywhere, you will have no readily available means to turn the judgment into cash.

                In short, you will face serious obstacles in ever collecting the money.
                Last edited by ESteele; 10-18-2011, 10:14 AM.

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                • #9
                  I would just write off the $1800 as a lesson learned and provide a (truthful) negative reference for her in the future if she uses you as a reference.

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                  • #10
                    Well that was a sobering message for me... In any case, I appreciate you guys trying to help me out.

                    It sucks because I run a school for low-income families. The church accidentally combined my summer salary plus her summer salary into one check and gave it to her, effectively meaning that I worked this summer for no pay. It really is a dog-eat-dog world out there...

                    Comment


                    • #11
                      A cheaper alternative might be to send a letter by FedEx (so you know it was delivered and tracked) from a lawyer indicating that she was overpaid and owes you the money. The letter might also reference turning it over to collections or taking her to court if she does not pay. 9 times in 10, the letter will get results. You could also write the letter yourself if you really didn't want to get a lawyer involved though something from a lawyer is likely to get better results.
                      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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