Stale Dated Payroll Check

[kismetique]

I reside in the state of Texas.

There has been on-going communication/litigation between my last employer and myself regarding some unpaid overtime wages. Briefly - I filed an internal FLSA complaint, for which I was then forced to resign my position. After several meetings, the city municipality cut me a check for the hours with stipulations placed on the check for which I did not agree. I wrote a letter with copies to everyone (including their legal dept) stating I did not agree with the terms and therefore would not be cashing the check. I have never heard anything. I had also filed a complaint with the DOL and was contacted that they intended to start an investigation and my complaint was not the only complaint they were currently investigating. I was told that the DOL would contact me in a week or so to follow-up on the initial response they received from the employer. That was over a month ago and I've heard nothing. I decided the issue was dead.

So, when I received a W-2 for the wages, I decided to cash the check and see what happened. The check was issued in July 2005, I deposited it in Feb 2006. The check is on its way back to me due to having a stale date. I contacted the employer and they are just not sure they want to re-issue the check or not. If they do not, how do I handle the W-2, I certainly don't want to pay taxes on wages I never received!

What kind of recourse do I have, what laws, if any are involved here and what is my employers legal responsibility in this situation?

I have contacted the DOL to check on the status of the complaint/investigation; however, I have heard nothing back from the inquiry. My 2 year statute of limitations will be up in Oct 2006. Although I believe they willingly with reckless disregard withheld the payment giving me 3 years, I am under the impression that only holds true for court cases?

 

[pattytx]

You constructively received the wages. You had the check in hand. You were the one who chose not to negotiate it. Your W-2 is correct. Any statement on the check that said it was "payment in full" for any debts, etc. owed is, in my understanding, not enforceable and has no legal effect.

Now, if they refuse to replace it, THEN they would have to issue a W-2C form (corrected W-2).

The employer did this (so to speak) voluntarily? As in, without an order from the DOL?

 

[kismetique]

Stale check

Yes, the employer paid me voluntarily, but with the stipulation that when I cashed the check, the website that I had already copyrighted under my name became theirs - which is simply not legal. It is complicated - for all the time I was creating the website at home, I was calling it volunteer work and I copyrighted the work since I was giving it to them, with the stipulation that should something happen, the copyright reverted back to me and was non-negotiable.

After a year or so, I realized I could not volunteer time doing the same type work for which I was also paid and I asked for payment in lieu of the copyright. They wouldn't go for it - they wanted the work for free AND the copyright for free. The issue drug on for almost a year and they forced me to resign my position before they decided to pay - at that point I wasn't so generous anymore and had taken control of the website and copyright.

I also own the domains where the website is located and the website is still in operation. By cashing the check I didn't want to get hauled into court over the matter and wanted to try and work out a deal. When they wouldn't, I contacted the DOL and they are supposed to be investigating....I've not heard back since the initial contact (almost 2 months ago) and signing a consent to use my name in their investigation. When I got the W-2....I threw up my hands because this has been on-going for almost 2 years and I'm tired of it in my life.....I decided to deposit the check and made sure it had no mention of a void date or time limit....now they don't want to honor the check.

I've been trying to contact the DOL to find out the status of the investigation, with no luck. Can the DOL force them to re-issue the check once they finish the investigation and find they owe me for the time?

Or....since the funds are still a legal liability to them, don't they have to turn them over as escheated to the state, so I can recoup them that way?

Thanks for your time and any insight you can give.

 

[pattytx]

Theoretically, I believe this is not a "legal liability" until/unless the DOL orders the payment. They can't escheat it to the state until after 1 year, since it's over $100. Are you working with the federal DOL or the Texas Workforce Commission?

 

[kismetique]

Dol

Well...I have filed a complaint with the DOL. I have been contacted by phone and asked to sign a waiver in order to use my name in their investigation, which I did. The investigator said as soon as he received my waiver and had contacted the employer he would be back in touch with me ...probably in a week or two. That was almost 2 months ago. I've tried contacting him with no luck to date.

Not sure if it matters, but the employer is a city municipality. When the check was cut, the amount was debited to the payroll expenses account and credited to the payroll payable account. If I had cashed the check, the City is relieved of that payroll liability; however, since the check never cleared and they are refusing to disburse the funds - the accounting liability remains until the funds are disbursed or written-off. Their obligation to compensate me for work performed still remains (since I am still in position of the instrument proving their liability to me), which is also proof of my property rights to the funds. If they plan to write-off the owed funds, that would then constitute an understatement of their legal payroll liability on their financial statements.
(Of course, this is just my take on the situation)

I received the check back today and will take it to the employer tomorrow to 'see' if they are going to re-issue.

Again, thank you for your time and information.