Published on October 23rd, 2012 by Alan L Sklover
Question: I work for a physician. I just received a letter with my pay check stating my salary was being reduced by $23,000 per year, along with my work week from 5 days to 3 days immediately, but effective going back for two weeks.
When I got my next check, I was paid (a) only for 3 days that week even though I had worked 5 days, and (b) at the lower salary, all before I got the “reduction-notice letter.” The check I received showed that I was denied $700 this way.
When I asked the Bookkeeper she told me that the Doctor said he wanted this check to reflect this lower pay, even though we did not find out about it until we received the check.
How could that be legal to do? Thank you.
Harrisville, West Virginia
Answer: Dear Anita: Your sense that “This can’t be legal” is spot on; it is not. I think your employer is having a difficult time, and perhaps not thinking too well.
1. An employer – or an employee, for that matter – can tell the other that, effective immediately, there will be a change in the terms of their relation if, that is, the relation is going to continue. Without an employment contract, either the employee or the employer is free to say to the other “I want a change and I want it now.” Once the other is made aware of that desire to change the relation, he or she can say “All right,” or “No, we must end the relation,” or something else. The important thing: before the change takes place, the other party has a right to say “No.” That is what we tend to refer to as “at will” employment.
2. However, neither the employer nor the employee can say to the other, “Effective yesterday (or last week, or two weeks ago) I retroactively and unilaterally changed the terms of our relation.” That is simply not acceptable in the law, as the recipient has been without notice of the change, and thus could neither object, nor end the relation, with knowledge of what was happening. Just like you cannot go back in time to change reality, you cannot go back in time to change what was then agreed to, and was binding on both parties.
3. If you remain in your job, by doing so you are agreeing to accept the lower pay and lower number of days of work, until you either say “No more” or “I quit.” Once your employer gives you notice of your lower pay and your lower number of days per week, then if you remain in his employ, you are considered to have accepted his changes, at least until you change your mind and either object or quit, both of which you are free to do. At the very least, you might try to get back the $700 you are owed by a respectful letter to him suggesting that he is not permitted by the law to do what he did to you, and that you would like him to reimburse you for the $700.
4. If an employer tries to retroactively lower compensation, as your employer has tried, it is an illegal denial of wages earned, and is unlawful in every state and country I know of. Put simply, your boss owes you the “retroactive” decrease in pay of $700. In your state of West Virginia, you can file a Request for Assistance form with the West Virginia Division of Labor. Their website is www.wvlabor.com, and has all the information and forms you should need to do so. Of course, you could probably collect your $700 due you by means of bringing your employer to your local version of “Small Claims Court,” but that would likely end up ending your employment relation. That is the reason I suggest, first, your attempting to collect your $700 by means of a respectful letter to your boss requesting it.
5. Be mindful, though, that your boss might just turn around and in retaliation fire you if you either (a) object to the $700 shortfall, or (b) file a State complaint against him, which might or might not be against West Virginia law. In most states in the U.S. it would constitute a violation of law for an employer to fire an employee in retaliation for the employee’s filing an unpaid-wage claim for monies due but unpaid. Though I tried to do the legal research to find out what West Virginia law says on that issue, I could not find an answer. That may be due to the fact that often “obvious things” in the law are not easy to find. I remain, though, pretty confident that West Virginia law probably says that a firing in retaliation for your filing an unpaid wage complaint would be illegal. The West Virginia Division of Labor would be better able to tell you.
We offer a Model Memo entitled “Collecting Monies Due You by Your Present Employer” that you might adapt to your own facts and use to collect what your boss owes you. If you are interested in obtaining a copy for a modest fee, just [click here.]
Anita, I hope this is helpful. You are no doubt owed $700, and you have a right to have it paid to you. The only real question is whether your employer might retaliate against you for trying to collect it, and whether that would be illegal, too.
I wish you the best in standing up for yourself, and hope you are better able to do so after reading this answer. Please consider recommending our SkloverWorkingWisdom blogsite to your family, friends and colleagues who work, or who want to work.
P.S.: You might be interested in obtaining a copy of our 100-Point Pre-Resignation Checklist. To obtain a copy just [click here.]
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