My husband was fired. Now they are refusing to pay final check.
My husband was talking with his employer this week about a raise he was promised. My husband went into work this morning and his boss told him, "I am accepting your resignation." When my husband said that he was not resigning, his employer threatened to call the police and have him removed if he did not leave the office. He again stated calmly he wasn't leaving because he was still an employee unless his boss was firing him. His boss said he was calling the police so he left. Before leaving the office, his boss also conveyed to him that he would not receive a final paycheck for the last two weeks he has worked (about $2500 before taxes). (tomorrow would be the last day of a two week pay period.) Nor would he be paid the travel expense reimbursement he gets once a month (about 600 dollars) since his work is 60 miles away and he drives in every day. He seems to have a grudge against my husband and does not want him to be able to collect unemployment either.
My question is can we sue them for unpaid wages, and if we were to win in small claims, would the company actually pay him? We don't have a lot of money and I don't want to spend money in court and then they refuse to pay the verdict amount. Also how much more can we sue his employer for over this amount? Also how long would it take to get paid in small claims court? And I don't think any lawyer will take on such a small case. Do we need one? Also he has accrued about a week's worth of vacation time. Is he entitled to that as well? We really need to know what to do very soon. We called the NY labor dept. but apparently he makes too much money to qualify. We have to be able to pay rent and put food on the table. Thank you.
Answers (1)
The truth is that, in NY State, employees don't have a lot of rights. One exception, though, is the payment of wages. Under NY State law an employer must pay earned wages within two weeks of the end of the pay period. Pay periods cannot be shorter than bi-monthly. If an employer fails to pay, the employee can sue and collect not only the wages due but also a 25% premium above that ("liquidated damages"), and attorneys' fees and costs of litigation. Employers have few defenses against wage claims. They cannot even offset claimed debts against wages.
If an employer fails to pay wages, the employee has the option of going to the New York State Department of Labor or court. The problem with the Department of Labor is that they cannot help you if you earn more than $600 per week. So, a lot of employees have no option but court.
Even though NY law provides for attorneys fees, most employees will have a very hard time finding an attorney willing to take their case. One reason for this is that very few lawyers are familiar enough with wage and hour issues to know that liquidated damages and attorneys' fees are available. As a result, most attorneys will undervalue your case.
However, even attorneys knowledgeable in wage and hour laws will tend to shy away from cases involving small amounts. A claim for $2500 or $3100 will be a small amount. This is not the way it is supposed to be, but the truth is that a judge will have a hard time awarding an amount for attorneys' fees that could easily exceed the amount of the claim.
So, a lot of times, an employee has to go to small claims court. Small claims proceedings are supposed to be resolved quickly.
I have to confess that I don't know the procedures in small claims court. But I can tell you that in the cases that I work on, what a judge gives you will not necessarily compell an employer to pay.
When you win a case tried to a judge, you get an Order. When I get an Order for a client, it is up to me to get it "reduced to judgment." In federal court, the clerk of the court will automatically reduce the Order to a Judgment. In state court there might be extra steps. I say "might" because small claims court is suppose to be easy to use. So, may be, but I don't know, the Order in a small claims action also automatically gets reduced to judgment. Ask the clerk in small claims court if that happens automatically, or, if you have to take extra steps.
In any case, judgments are remarkable things. Once you have a judgment, you can go to the sheriff to get it executed. The sheriff can do interesting things like take money out of the employer's bank account to satisfy the judgment.
You can even freeze the money in a bank account by sending the right type of notice to the employer's bank.
Judgments can cause all kinds of disruptions to a business. As a result, when an employer has a judgment entered against it, it usually has a lot of incentives to pay up immediately before you with the help of the sheriff start invading the bank accounts or confiscating the cash register.
posted by David M. Lira | Apr 23, 2004 08:14 AM [EST]
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