How to pursue former employer withholding pay (not last check) due to alleged theft

[Nicole0828]

What is the name of your state? NC

I gave a notice to my employer with a resignation date of August 3rd 2018 due to the reputation of the company as well as lack of support from the owners. I woke up on 8/3 to check my account and see there's NOTHING in it. Around 8:45 the owner calls me and informs me that my pay is being withheld because "it's come to his attention there are things missing in the center and an investigation is pending". I ask what he's referencing as missing as I did do a WHOLE LOT of dumping to make the classrooms presentable and not so cluttered. I verified with the DOL that they cannot withhold my pay and I can file a wage complaint Monday at 8 a.m. However this situation has me livid because they for 1) wont tell me what they're accusing me of stealing 2) it's illegal and 3) this is not the time of month to withhold a check from a mother of 3 kids. I was informed by a police that this would be a civil matter if anything and that their lawyer advised them to do this. I would like to pursue a lawsuit with my previous employer for this illlegal action, my NSF fees that I've been accruing since I have many bills set up ACH draft as well as emotional distress as my rent is pass due and I am having constant anxiety attacks thinking about this matter. Id also like to go after the lawyer who "gave this advice". Do I have a ground to stand on?

 

[eerelations]

Contact your state or the federal DOL.

 

[cbg]

In your state you may EITHER file a wage claim with the state OR file a lawsuit, but not both. The lawsuit will be much more the complicated of the two and you would be well advised to retain a lawyer. Neither will be fast. You cannot sue the employer's lawyer; he does not owe a duty to you.

 

[HRZ]

also, your distress and NSF costs are not recoverable . Neither a wage claim nor a lawsuit is going to get fast results even if you prevail .
NC does provide for a 100% adder to wages improperly withheld as well as provision for interest and attorney costs if you prevail in a civil suit .

GIven that neither will be fast, you might be smarter to get some input from a local labor law attorney FIRST before you file a wage claim as to file a claim may prevent filing a suit ( see cbg above ) I think a wage clam does not provide for a 100% adder .

Absent advance written and signed agreement and advance notice and some other minimuum wage issues , the employer may well be on wrong side of law to divert or withhold your wages .

Weigh both options before you lock in one path.

 

[commentator]

Sorry to say you are laboring under the delusion that the employer has the responsibility to treat you fairly, provide for your support, and/or follow what few employment laws actually exist, especially in your very employer friendly state. It was a little bit foolish of you to quit the job with a flourish and a notice because of yada yada yada unless you had two things, I hope you had something else coming right up as far as another job that you could replace it with and I hope you have the means and free time to now launch a big labor complaint and sue them. It sounds to me like some sort of private school or child care care center and I strongly suspect there was no union, you had no hiring contract with them. If I'm wrong, contact your union at once.

But otherwise, this employer, with this "We've got to check to make sure you've not stolen something before we pay you" deal, they're jacking with you. You gave them a big indignant notice (when you really didn't need to do this, it is not a legal requirement, and they are not even obligated to let you work out such a notice.) They'll probably drop the money in there just at the time that they think they can get away with having withheld it, showing you they did have power over you, and yet it wouldn't be worth it to you to take the time and money and effort from your moving forward, searching for another job and supporting those three children to sue them. They don't HAVE to tell you anything, it doesn't HAVE to be fair, and though you can go through all the steps, it will probably turn out that it's to your best interest to go on, move on, find something else and leave this employer behind.

 

[xylene]

I've given this advice before, and will again:

Do not use automatic ACH withdrawal's or bill pay if you are living paycheck to paycheck. Don't use auto ACH if you don't have no fee overdraft protection on the account. If you can't afford such a line of credit or are not eligible as credit risk, this should tell you you are in too precarious a financial situation to use auto ACH. It has few benefits, and massive risks, especially for those teetering on insolvency.

 

[Nicole0828]

Sorry to say you are laboring under the delusion that the employer has the responsibility to treat you fairly, provide for your support, and/or follow what few employment laws actually exist, especially in your very employer friendly state. It was a little bit foolish of you to quit the job with a flourish and a notice because of yada yada yada unless you had two things, I hope you had something else coming right up as far as another job that you could replace it with and I hope you have the means and free time to now launch a big labor complaint and sue them. It sounds to me like some sort of private school or child care care center and I strongly suspect there was no union, you had no hiring contract with them. If I'm wrong, contact your union at once.

But otherwise, this employer, with this "We've got to check to make sure you've not stolen something before we pay you" deal, they're jacking with you. You gave them a big indignant notice (when you really didn't need to do this, it is not a legal requirement, and they are not even obligated to let you work out such a notice.) They'll probably drop the money in there just at the time that they think they can get away with having withheld it, showing you they did have power over you, and yet it wouldn't be worth it to you to take the time and money and effort from your moving forward, searching for another job and supporting those three children to sue them. They don't HAVE to tell you anything, it doesn't HAVE to be fair, and though you can go through all the steps, it will probably turn out that it's to your best interest to go on, move on, find something else and leave this employer behind.

I appreciate your taking the time to respond to this. My husband would like to sue, I just want my pay from 8/3 and what Im entitled to come 8/17. I quit to stay home with my own children and make sure their needs are met so yes, I do have time on my hands. I have also contacted the US DOL as they do not pay employees their overtime and as I stated, I will file my wage claim Money in hopes of getting my deposit sooner than later. At any rate, I'm blessed to have such a great support system and look forward to seeing how things play out for them Thanks again!

 

[HRZ]

Perhaps just to address your homefront pressures you might slow down filing a wage claim filed with state until you have time to discuss alternate route of a civil suit for wages with a local attorney who practices that area of law on behalf of employees .

 

[cbg]

I do not always agree with HRZ - in fact, I seldom do. But in this case I think he's on the right track. Since you are limited to either a wage claim or a lawsuit you may want to hold off filing a wage claim until you have discussed all your options with an attorney and determined what is going to be the best option for you.

 

[Nicole0828]

I do not always agree with HRZ - in fact, I seldom do. But in this case I think he's on the right track. Since you are limited to either a wage claim or a lawsuit you may want to hold off filing a wage claim until you have discussed all your options with an attorney and determined what is going to be the best option for you.

Thank you! I have a few attorneys I have in mind to touch base with tomorrow.

 

[commentator]

So what if the employer pays you Monday? You're going to have zero to file a claim about or sue about. Glad you're going to get away from them and get to enjoy more time with your family.

 

[Nicole0828]

So what if the employer pays you Monday? You're going to have zero to file a claim about or sue about. Glad you're going to get away from them and get to enjoy more time with your family.

That would be my ideal situation and I really pray so. Guess time will tell! I really don't want to have to resort to legal dealings and form filing! Let's all just move on!

 

[Nicole0828]

I was paid on the 8th instead of the 3rd and also on the 17th. I see my employer has deduced my rate of pay from my $38,000/year salary to our state minimum wage of $7.25/hr. for those pay periods. Is that legal? My checks were way less than half of what it should have been. TIA for any insight.

 

[cbg]

Reducing your pay is not inherently illegal; however, your state requires notification before a reduction can be taken in place. You'll want to check all the information you were given at hire, employee handbooks, etc., to determine if there is any notification that a final check will be reduced to minimum wage. (I am taking it for granted that you did not receive a notice after you gave your resignation.) If there's no such notice there, then the reduction was not done according to state law and you would have a valid wage claim for the balance.

 

[commentator]

Since your state does require notification before a reduction, they'd owe you the expected amount, at least as far as salary is concerned. In some states where that is not true, many employers have done this, legally, paid the person for the last pay period ONLY the minimum wage for the hours worked. You need to file that wage claim with the state's department of labor wage and hour division, and can probably get paid a few dollars more. There's no charge to work with them, there's no attorney required, so it'd certainly be worth the time to see if the can be made to pay you this additional money they're trying to cheat you out of for spite from them.