Employer puts 'Stop Payment' on laid-off employee

[margaret123]

I started working as a FT marketer for a home health company soon after graduating college in March of 2009. Jobs were pretty much non-existent for recent grads at that time, so I accepted pretty low wages (especially considering I have a degree in biology from an SEC school.) In August of 2009 I decided to quit due to the extremely low pay with no benefits. A month or two later, the owner of that company called me and asked what he could do for me to return to working for him. In the time since quitting I had decided to apply to several medical programs and was taking some pre-req courses not fulfilled by my degree, so I could only offer to work PT. He agreed to all of my requests, so I began working for him again October 5, 2009. A few weeks ago my boss had me train a new FT marketer, and a week later informed me that he could not afford to have 1.5 marketers (myself being the '.5' b/c of PT) and so he was 'laying me off.' The new marketer could work FT for less pay than I made PT. In the meeting where he informed me of my termination, he verbally offered to provide one week's pay as severance, asked me if I could think of another PT position for myself with his company, offered to write letters of referral in the future, and we shook hands and left on good terms. I told his secretary/office manager that I had still not been paid for several referrals and that I would e-mail her w/a list of those referrals, and that I would come in 2 days after to return all marketing materials in my possession for my checks. She replied to my e-mails confirming that all 8 unpaid referrals were correct, and confirmed that my pay for the prior week--along w/the offered 'severance'--checks were ready. I brought in the marketing materials, and she handed me two checks: 1 for $400 for the previous week, and 1 for $605 for the 'severence' of $405 + 8 referrals (at $25 each=$200). I said goodbye to everyone, hugged some coworkers and left to deposit the checks. A few days before X-Mas I received notice from my bank that the check for $605 was being held until Dec 28th; and on New Years Eve I received notice from the bank that there was a 'stop payment' placed on the check. I called my old boss to see what happened and he simply told me he 'did not feel obligated to pay it.' My employment contract w/him clearly states that I receive commission off each referral, so he's directly breaking the contract. When I told him that I would need a copy of my employment documents he told me if I want my papers then I 'must get subpoena.' My question is, what are my rights? Is an employer bound to a verbal severence offer? Is it illegal for him to withold my referral commission? I incurred personal financial strain b/c I thought the deposited check was in my account and it was the week of X-Mas--and I started a new job the same week I was laid off that required scrubs as uniforms, so I made many purchases (as I didn't own any scrubs.) I also had to unknowingly put many purchases on a credit card that's linked to my checking acct, which accrues much more interest. I was forced to take out personal loans to pay rent--which was late for the first time (thus a late fee--again b/c of this situation)--and pick up prescriptions. What are my rights and where should I take my claim? The BBB? Workforce Commission? Small Claims Court? Any advice helps! Thanks!!!

 

[mightymoose]

It was more than a verbal offer- you have a copy of a check.

I'm not sure what employee documents you want to see... but anything kept in your personnel file should be available for you to review.

Since this is a fairly small amount small claims is the way for you to go. An attorney will cost you more than this is worth and you sound competent enough to make a reasonable argument in small claims yourself.

There is a good chance he will pay up or settle with you when you serve him papers. Inform him of your intent to sue if payment is not received by a particular date and then follow through with it.

At the very least he will we you $200 for the unpaid referrals.

 

[margaret123]

Thank you so much!

How do I 'serve him papers'--do I myself send him a form from the small claims court? Or do I file a complaint with them and then they send him notice?

Also, I had a few friends suggest that since he wrote one check for both the severance plus the commission that it indicates intent to pay both. And do you know if these apply in this situation:

§ 191-c. Payment of sales commission. 1. When a contract between a
principal and a sales representative is terminated, all earned
commissions shall be paid within five business days after termination or
within five business days after they become due in the case of earned
commissions not due when the contract is terminated.
2. The earned commission shall be paid to the sales representative at
the usual place of payment unless the sales representative requests that
the commission be sent to him or her through the mails. If the
commissions are sent to the sales representative by mail, the earned
commissions shall be deemed to have been paid as of the date of their
postmark for purposes of this section.
3. A principal who fails to comply with the provisions of this section
concerning timely payment of all earned commissions shall be liable to
the sales representative in a civil action for double damages. The
prevailing party in any such action shall be entitled to an award of
reasonable attorney's fees, court costs, and disbursements.

§ 197. Civil penalty. Any employer who fails to pay the wages of his
employees or shall differentiate in rate of pay because of sex, as
provided in this article, shall forfeit to the people of the state the
sum of five hundred dollars for each such failure, to be recovered by
the commissioner in a civil action.

§ 198. Costs, remedies. 1. In any action instituted upon a wage claim
by an employee or the commissioner in which the employee prevails, the
court may allow such employee in addition to ordinary costs, a
reasonable sum, not exceeding fifty dollars for expenses which may be
taxed as costs. No assignee of a wage claim, except the commissioner,
shall be benefited by this provision.
1-a. In any action instituted upon a wage claim by an employee or the
commissioner in which the employee prevails, the court shall allow such
employee reasonable attorney's fees and, upon a finding that the
employer's failure to pay the wage required by this article was willful,
an additional amount as liquidated damages equal to twenty-five percent
of the total amount of the wages found to be due.
2. The remedies provided by this article may be enforced
simultaneously or consecutively so far as not inconsistent with each
other.
3. Notwithstanding any other provision of law, an action to recover
upon a liability imposed by this article must be commenced within six
years. All employees shall have the right to recover full wages,
benefits and wage supplements accrued during the six years previous to
the commencing of such action, whether such action is instituted by the
employee or by the commissioner.

 

[mightymoose]

When you fill out the papers for small claims you will get instructions for how to serve the other person- generally, it must be done by someone over the age of 18 that is not involved. Sometimes the court will serve the papers through the Sheriff Dept. for a fee.

I am not certain if you are ENTITLED to the severance pay... but you do have prrof that it was agreed to, which is in the form of the stopped check.

The trouble that I do see is that $200 worth of that stopped check was what you were owed for your referrals... which should have been paid within that 5 day period as in 191 above. It wouldn't hurt to include the language of 191 in your demand letter to the employer and indicate your intention to seek double damages in court. That might get him to pay up and avoid a judgment.

If this is a larger business with an HR department it might be worthwhile to notify the boss there, or to even find out who handles the legal issues for the company and do the same.

On that note... when you go to small claims, be prepared with the registered agent info for the company (this is the person/agency that handles the legal issues). You should find a link on your state Secretary of State website that will lead you to this information. The registered agent is the person you will serve any papers to... not the boss.... unless it turns out the boss is the registered agent.

Use this link to look up the employer.

http://ecpa.cpa.state.tx.us/coa/Index.html