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Fired for wanting paycheck

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mjames2497

Junior Member
What is the name of your state?What is the name of your state? Ohio
First of all the "at-will" law is a farce. Thankfully it is being tested in the courts. I worked as a maintenance man at apartment complex for 3 years as an employee. The property was sold and I stayed on. Recieved my first paycheck and was dumbfounded to find no taxes being taken out. I had heard that the new owners use independent contractors for everything even though they had ALL the control over hours and pay. I was also an important part to the extent that they needed me for maintenance. Keep in mind I was NEVER told I was an independent contractor, nor did I ever sign anything. I waited almost 5 weeks for another paycheck. I made a decision to tell them that I would be in the next morning but if I didn't get a paycheck I would leave. No paycheck I left. Same thing the next day,reported for work,no pay,went home. Got a call later that day saying I had a paycheck. I said I would be into work the next day. I was told not to come to work, I had quit. I said I did not quit! I was not allowed to return to work. The check I received was not what I was owed and I informed them of this. I waited 2 months and then decided to file small claims. The magistrate ruled I was owed this money plus he found that I was indeed an employee. Because the owners did not show up to fight the case, I was not allowed to claim they owed me more than I originally asked for because I was not paid overtime. As of this writing I still have not received a W-2 or 1099 from them. When the new owners took over....it was BEFORE the final sale. For this reason I am entitled to Labor day pay because that was one of the benefits from the owners previous to the new owners. I was actually working for the owners that was in the process of being sold for a month. Before all this happen,I know the owners were happy with my work from conversations I had with people who talked to them. I tell you this because I feel I was set up for someone younger and less pay was hired after I walked off the job for failure to receive a paycheck. I also feel it was a retalitory firing on their part for me doing what I did. It was my legal right to be paid. Any help would be appreciated.
By the way, before the new owners took over the leasing agent and I had a talk with one of them. He stated that all benfits would remain the same. As we found out later,that was not true. Breach of contract??
 
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cbg

I'm a Northern Girl
To deal with the easier issue first, no, there is no breach of contract. An owner making a comment that they'll leave the benefits the same is NOT a contract - it's a statement of what they initially intend. If there are business reasons that cause them to have to change that, it's legal.

Now, to the main part of your question. I see that you filed in small claims court. Did you ever, at any time, involve the Department of Labor?
 

mjames2497

Junior Member
Yes I have contacted the department of labor.......got a voice mail. They returned my call last week and will contact them this morning. As I understand it.....breach of contract can be one of a verbal communication. I have already turned these owners into the IRS. Is not constructive discharge where ANY employee would have done what I did. To quote the law, "an employee's reasonable decision to resign because of unendurable working conditions is assimilated to a formal discharge for remedial purposes."Trust me when I say, that not being paid was unendurable when you have a house payment and other bills that DEPEND on that paycheck
 

mjames2497

Junior Member
Also, these owners are as unethical as you can get. There is so much I could tell you that they did illegally but I don't wish to bore you. And I don't think no one really cares about another persons problem. That is this country today...all about greed
 

cbg

I'm a Northern Girl
Whoa, hold on a minute. No one's telling you you're wrong to feel the way you do. I asked a question, that's all.

The reason I asked is that in most cases, a case of wrongful discharge via retaliation is handled through the DOL. I needed to know if you'd contacted them already because if you had, my answer would be different than if you hadn't.

At this point, the first thing you need to do is tell the DOL what you've told us. I agree that you were probably discharged in retaliation for asking about your pay and that is illegal. (BTW, the DOL is the agency you'd complain to about that, not the IRS.) But you need to give the DOL a chance to handle it, okay? Try not to take on too much at one time. :) If the DOL says they can't do anything, THEN we can look at other possibilities.

While there are instances when there can be a verbal contract, I very much doubt that this is one of them. When there is a sale or a merger of two companies, it is a VERY complicated thing putting the two benefits packages together. It is simply not always possible to keep one package intact, no matter how much they might like to. Trust me, I've been the one trying to accomplish it on more than one occasion. It is VERY unlikely that one statement that they will leave the benefits alone, will be considered to be a verbal contract.
 

mjames2497

Junior Member
I contacted the IRS because all they are doing by making everyone independent contractors is avoiding paying there share of employee taxes. Tax evasion, and the IRS IS investigating.
I told you these people were just about greed. How's this for breach of contract.........The former leasing agent quit before the new owners took over. She got another job as a leasing agent with great pay and benefits. She still lived on the property that the new owners owned. One evening, one of the owners came to her townhouse and said he needed a leasing agent. The former leasing agent [Elayne] told him she was unhappy with her new job. They discussed pay and benefits and she accepted the offer of employment. She quit her job the next morning. After she quit her job she gets a knock at her door and its the owner whom she had agreed to terms with. He told her he hired someone cheaper, the deal was off. Elayne was devastated.I ask you again....breach of contract?
Another example of how unethical they are. By the laws of the state and city, the boilers have to be turned on September 1. I asked when that day arrived to do this...I was told no. They wanted to get them checked. The boilers are 1 year old and the state passed them 1 month ealier. On October 3rd, Sunday it was below freezing. At 7 am I told my wife I have to turn those boilers on for the residents so they can have heat....damn the consequences. I went and turned them on. Their only concern was to save money on the gas bill. I KNOW THIS.
 
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cbg

I'm a Northern Girl
Why are you so hung up on breach of contract?

NO. Not breach of contract. Possibly detrimental reliance.

Edited to include; Elayne may have a case for detrimental reliance. Based on the facts in your post, you still have no case for the change in the benefits package.

It sounded as if you were saying you had contacted the IRS about their failure to pay you. Of course the IRS is the right agency about tax evasion.

Do you understand that I am not defending the employer? I am not saying they are right? I am not saying you have no case for wrongful termination? I am saying ONLY that the owner saying they will not change the benefits and then changing them is not a breach of contract.
 
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mjames2497

Junior Member
Ok...let me explain one more time. The new owners came in on August 23, 2004. They started renovating. The property manager was angry because the sale was NOT final. Final sale took place on Sept. 22, 2004. The owners and the current property manager at the time had a meeting. The owners agreed to assume payroll if they could continue to renovate. The property manager agreed. Until September 22 I was STILL under the existing employee benefit plan. That alone entitles me to be paid for Labor day, which I was not.....overtime...and also the new owners lowered my pay without my knowledge while I was STILL under the previous benefit plan and this is why I have contacted the DOL along with the fact I waas an employee. I am sorry if I sound angry....I am angry that people can actually get away with what they want or think they can without consequences. They will do anything to squeeze out a dollar irregardless how it affects other people...legal or not
 
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cbg

I'm a Northern Girl
I don't think it's quite as clear cut as you think it is, although I understand a little better with this MUCH more detailed post why you think there's been a contract breach. I still maintain that the owner making a statement that they will not change benefits is NOT enough to establish a breach, however. While you may have a case to be paid for Labor Day, it's not going to be under a breach of contract claim; it's going to be under the terms of the sale and EXACTLY when the acquiring company took over the benefits plan, which is not necessarily either the day they took over payroll OR the day the sale was final.

I have been involved both as management and employee in a number of mergers and sales, both as the acquiring and the acquired company, and believe me, it's much more complex than it appears on the surface.

I fully understand that these are greedy, unethical people. However, and I mean this as an attempt to help you and in NO other way, you might do better to stop focusing on an attempt to force a breach of contract claim where none exists, and instead focus on what claims you do have. I'm not saying you can't get paid for Labor Day; I'm saying that there are better ways of getting that pay than trying to turn something into a breach of contract claim when it isn't one.

BTW, you mentioned overtime. It's not entirely clear to me what you are looking for, but just in case this is what's in your mind, you are not owed overtime on the basis of how many hours you are paid for, it's on the basis of how many hours you WORKED. So if, as an example, you worked 38 hours between Tuesday and Friday, and you're thinking that being paid for Labor Day would mean that you get 6 hours of OT, that's not correct. Assuming that it's eventually established that they have to pay you for Labor Day, and I'm not saying that won't happen, you would be owed 46 hours of straight time, no OT. Unless you have a bona fide contract that says otherwise (and company policy is not enough) an employer is not required to include vacation time, sick time, personal time, holiday time, or any other paid leave time into their OT calculations.
 

mjames2497

Junior Member
I have not been thinking of breach of contract in the last couple of posts. I'm just trying to make as clear as possible the situation I was involved in and how I lost my job. I am 55 years old and trust me there IS dicrimination out there for people my age. They owe me for 22 hours overtime which does NOT include Labor day. I just think I am owed that because of the fact I was still basically an employee of the previous owners.
Just talked to the DOL and they said that because I went to court and got a decision, they cannot help me any futher. They suggested I see a lawyer on filing a civil suit of constructive discharge.....make sense??
 
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cbg

I'm a Northern Girl
I think an attorney might be your only option left if they aren't able to help you. As a constructive discharge your claim is a bit weak (generally that means that you quit due to intolerable illegal treatment) but since I agree your termination was most likely illegal, even if it won't fly as constructive discharge a good employment attorney should be able to do something for you. Make sure you work with an attorney whose experience has been working with employees, not employers. Good luck to you.
 

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