can ex-employer withold pay for minor contract changes.

I worked for a small consulting firm which sent me to work for the client
for abt 5 weeks,
the employment letter had one sided clauses.
I made the foll. changes to them before signing:
1)employer can fire employee at will, while employee has to give 2 week notice.
Change made: Employee can also leave without notice.
2)1 year No-compete
Change made:No-compete period will not exceed the period employee worked.
3)Employee wage info confidential till 1 year
Change made:Not confidential.
(as prospective employers will ask how much I make)

I mailed this signed agreement to the employer and then went to work for the client.
(At this time my ex-employer- did not say anything) They withheld my pay
but did not give any reasons, I thought that it would be a small thing that could be fixed soon.

5 weeks went fast, then I resigned.
Now my ex-employer has not paid me for all the 5 weeks that I worked for the client.
They have only now have told me that they will not release the check unless I agree to all their (one sided) conditions and sign another employment letter without changes.

I do not want to agree to the conditions which are unfair, and then they will find an excuse to dock my pay.
(I gave only 2-3 days notice)
What can I do ? do I have to sign ?
Can they refuse to pay me because I made minor changes to the agreement ?

I have all the timesheets approved by the client.

1 answer  |  asked Aug 7, 2008 10:53 AM [EST]  |  applies to New York

Answers (1)

David M. Lira
Not Paid for Time Worked

Beginning about 30 years ago (put it at the time of the election of Ronald Reagan), employee rights slowly, but surely, began to erode. The result today is that employees are working longer hours for less pay and benefits, and the American workplace is a much nastier place.

Howeve, one are has managed to remain fairly stable: the payment of wages. At least in New York State, an employer has an obligation to pay wages promptly -- basically within two weeks of the end of the pay period in which the wages are earned. The law gives the employer very few excuses for withholding wages. The safest excuses are taxes, and employee consent to withhold for a specific reason.

Technically, if you are not paid your wages, you can go to the NYS Department of Labor. However, if you earn more than a minimal wage, they will tell you to go to court.

Under NY State law, you are entitled to the unpaid wages, plus 25%, plus attorneys' fees and interest.

Note that your questions concerning the employment agreement are irrelevant to all of this.

The one thing I would be concerned about is if the employer consider you an independent contractor (1099) as opposed to an employee (W-2). If you are not an employee, you are not entitled to wage protections because you are not being paid wages.

However, this distinction between independent contractor and employee is often a ruse. The employer wants all the benefits of having employees (control) while also having all the benefits of having independent contactors (lower risk in terms of pay and benefits). When they try to get both and are confronted, employers tend to lose.

Don't sign anything. Get an attorney and just sue.

posted by David M. Lira  |  Aug 8, 2008 11:17 AM [EST]

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