Unpaid wages

A year ago I quit my job because my employer was not paying me on time. I would sometimes wait up to three weeks for a paycheck. So finally I confronted him, nothing was resolved so I then quit. As of today, I still have not received my last two paychecks from this employer. I tried small claims and got nowhere b/c the company was trying to file a counterclaim against me and have the case transferred to common pleas. So I hurried and dismissed my case b/c I could not afford a counterclaim suit of $13,000 against me. The judge struck the order b/c it was not filed properly so before he could refile I dropped my case. Now I am going through Wage and Hour and am being told that I need to hire a lawyer to get my pay. I don't know what to do. Whether to pay for a lawyer to get $2300 or to drop this whole matter. I would rather not drop it b/c the owner of the company has harrassed me by phone throughout this time frame - especially when I file a complaint. What should I do or who should I seek for help>

1 answer  |  asked Oct 11, 2001 08:50 AM [EST]  |  applies to Ohio

Answers (1)

Richard Renner
Unpaid wages and bullies

This is sad. Since you dismissed the first case before the statute of limitations ran, the original statute of limitation still applies. This limit is two years, unless the judge or jury finds that the violation was willful. If the court finds it was willful, then you have three years to refile.

Whenever and wherever you refile, the employer can refile the counterclaim. In fact, nothing stops the employer from filing a new direct lawsuit against you. If they do, obviously you will want to assert your wage claim as a counterclaim. But what if the employer waits until three years and one day to file their lawsuit against you? The normal rule is that you can still use the expired claim as an offset, but you won't get a judgment if the court finds you are entitled to more than they are.

For a straight minimum wage claim, if you win you get attorney fees too. I have occasionally taken these claims without requiring the client to pay anything in advance. However, if the case becomes mixed with other claims, the court can (and you can expect will) reduce the attorney fee award to just the time that was necessary to win the minimum wage claim, not allowing time defending the counterclaim. So, I would not take your case on a contingent basis. You would have to pay me up front, and I would ask the court to order that you be reimbursed. But you would be taking the risk of non-reimbursement.

When I hear that the employer was late paying wages, I usually wonder how easy it would be to collect if you win a judgment. Something to think about before paying a lot of money for a legal case.

Bottom line is that I recommend you consult a local lawyer. You need an objective assessment of how likely it is that they could win the counterclaim. Then, if you choose, you can refile in small claims court, and continue defending, with or without a lawyer, when the counterclaim comes. It won't be easy. It is risky. But I don't see another way to actually get your money.

For the telephone harassment, I suggest you send a letter by certified mail saying:
don't ever call me again. You do not have permission to call my number. Your calls are unwanted, invade my privacy and cause emotional distress.
Then if he calls again, call the police to complain. They can (but are not required to) set up a tracer on your telephone line. Then they can prosecute the next violation.

Did you get unemployment benefits. I hope so. After a year it is too late to apply on these grounds.

I was just reading a book to my little brother. It is called Bullies Are a Pain in the Brain. It costs $10 plus shipping and handling from Free Spirit Press, 1-800-735-7323, www.freespirit.com
It is a good book for grown-ups as well as kids.

posted by Richard Renner  |  Oct 11, 2001 12:10 PM [EST]

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