Unpaid Wage Archives

“Vacation and Vacation Pay – 50 Frequently Asked Questions”

Published on March 12th, 2014 by Alan L Sklover

“A vacation is what you take when you can no longer take
what you’ve been taking.”

 –       Earl Wilson     

ACTUAL “CASE HISTORIES”: According to the Bible, even God took a day off after creation. And, so, too, every now and then you need a time to rest, relax and recuperate from what you do all day, all week, and all month long. And that is to be expected. 

We receive many questions from our blog visitors about vacation rights and vacation pay. So, in hopes that you are planning a time to recharge your own batteries, and to help you get all of the respite you truly need, we have put together these 50 FAQs about vacation time and vacation pay, and the answers to each. 

LESSON TO LEARN: As it is with every other aspect of the employment relation, it pays to know “the rules” of your workplace related to vacation rights and vacation pay, so that you don’t  unknowingly violate them, but instead follow them, and make sure others follow them, as well, to your best advantage. 

Because so many employers are trying to cut back on pay and benefits wherever and whenever they can, it is more important than ever to know your rights and to be prepared to stand up for  those rights in a smart and effective way.  

HERE ARE OUR 50 “FAQs” ABOUT VACATION AND VACATION PAY: Remember: These are generalized answers, intended to provide generalized understanding, only. Your state law might provide differently.  Read the rest of this blog post »

“How can I get an extension to file a lawsuit on my own?”

Published on December 11th, 2013 by Alan L Sklover

Question: Alan, I have a legal claim and would like to file a lawsuit. However a deadline is soon approaching, and I have not yet hired an attorney.

How can I get an extension of the time to file my lawsuit on my own, that is, without an attorney?

Bonnie
Moncton, Canada

Answer: Dear Bonnie: As you may know, I am not licensed to practice law in Canada, so what I suggest below may not be applicable to you. However, it is applicable to most states and countries in which I have worked with “local attorneys,” and therefore I think it is likely applicable in Canada, as well. 

1. A law that sets a time limit to file a lawsuit is called a “statute of limitations.” In the majority of countries, including Canada, laws specify how long after an “event” or “injury” takes place a person can sue for damages in what is called a “civil” case, or a prosecutor can prosecute the person in what is called a “criminal” case.

 For example, in Canada, for “misdemeanor” or “summary” crimes, which are lesser crimes, there is a six-month criminal statute of limitations. After that period, a defendant can no longer be involuntarily prosecuted. However, for more serious crimes in Canada, there is no statute of limitation. So, for example, for a crime of robbery or rape, a prosecution can be brought even 30 years later. 

In Canada, as in almost all countries, “civil” lawsuits have different “statutes of limitation.” A case for collection of a debt, for example, must be brought within six years. In the U.S., each state sets its own statutes of limitation for different criminal and civil cases. In Canada, statutes of limitation are established by both the federal and the provincial governments. 

To find out the applicable Statute of Limitation for your case, you can probably find it out by conducting an online search engine search, or by contacting your local Court or Tribunal. And, too, an attorney might do you a small favor by looking it up for you.   

2. In a “civil” case, that is, one brought by one person against another, to get an extension of time to file your case, you need to ask the “defendant” to agree to it, in what lawyers call a “Tolling Agreement.” As a general rule, if you want to sue a person or company, and the deadline for doing so is approaching, you have to ask the other person or company to enter into a “Tolling Agreement,” in which both “sides” agree to extend the time period for filing the Complaint.

Sometimes, the parties enter into a Tolling Agreement so that they can have time to speak about settlement of a case without filing in Court. Commonly, the “defendant” against whom a lawsuit is threatened will not agree to do this, unless it is in the defendant’s interests. No  precise form of Tolling Agreement is necessary, but it is important to be clear about (a) the legal claim that is being extended, (b) when the Statute of Limitations is set to expire, and (b) to what date the parties agree to extend it.   

3. However, sometimes laws do not permit Tolling Agreements, or limit their application. For example, in January of 2004, in Ontario, the Statute of Limitations for a breach of contract case was changed from six years to two years, and by that law it was declared that this two-year deadline applies “despite any agreement to vary or exclude it.” Also, in the U.S., after the Equal Employment Opportunity Commission permits a person to sue for discrimination in Federal  Court, that person has just ninety days to do so, and the Courts have said that parties to the lawsuit have no ability to extend that deadline, even if they wish to or have agreed to. 

4. Quite often the smartest thing to do is to quickly file the most minimal papers necessary to start your lawsuit on time, with the help of a Court Clerk, and then later amend your Court papers or have an attorney do so for you. If you are tight on time due to an approaching deadline to file your lawsuit, and you have doubts about whether your adversary will agree to sign a Tolling Agreement, you might travel to the Court and describe your dilemma to the Court Clerk, and request some minimal assistance in filing the necessary papers. This is what I would, indeed, recommend.   

5. Some Courts, like the U.S. Federal Courts, have special Court Clerks called “Pro Se” Clerks, who work full-time for this very purpose. “Pro Se” means “For Yourself,” and I have heard many times of Pro Se Court Clerks showing people in your circumstances an example of a Court  Complaint someone else has filed that you can use as a Model or Sample. In addition, I have heard many times of attorneys who are willing to show “samples” they have filed in the past to people in your situation. Also, many Courts have files online, available to all, and in this way, if your local Court does so, you might see a good sample to follow. 

After your Court filing, and if necessary after “serving” a copy of the Complaint – that is, delivering it to the defendant – you can almost surely later “amend” your Complaint to make it better, or an attorney can do that for you. 

Keep this thought in mind: If you do, at least, file “something” before the applicable legal deadline, you have a better chance of not losing your legal rights than if you just did not file “anything” at all.   

Bonnie, I hope this is helpful to you. Don’t let your legal rights expire. I applaud you for standing up for yourself!! Please consider telling your friends, family and colleagues about our blog – we’d REALLY appreciate that!!

My Best,
Al Sklover

Repairing the World,
One Empowered – and Productive – Employee at a Time™

© 2013, Alan L. Sklover All Rights Reserved. Commercial Use Prohibited.

“If I am terminated for cause, can accumulated leave time and comp time be denied me?”

Published on December 2nd, 2011 by Alan L Sklover

Question: I was recently terminated by a municipal employer for which I am sure they will claim was “cause.” Over the course of my employment I have accumulated significant “leave time” and “comp time” that, under normal circumstances, and according to the Leave Manual would be given to me in a lump sum upon separation. Can they deny me this earned income because I was terminated for cause?

Bruce
New York, New York

Answer: Dear Bruce: As a general rule, all employees must be paid for all time worked. However, there is a fundamental difference between “comp time” and “leave time” when that rule is applied.

1. By federal law all employees (other than executives, professionals and managers) must be paid at an overtime rate (time-and-one-half) after 40 hours of work in a week. The federal Fair Labor Standards Act (often called “FLSA”) requires such “overtime pay.” However, municipal government employees, like yourself, may be offered the option of taking “compensatory time” (often called “comp time”) which is time off instead of the earned overtime pay.

2. By federal and state law, all kinds of payment for work must be paid upon separation; there are only a few exceptions, and “comp time” is not one of them. Employers cannot withhold from workers any compensation of any kind – including “comp time” compensation – upon the employee’s departure. There are a few exceptions; for example, if the employee owes the employer money, that might be a reason not to pay monies earned in order to pay off that debt, so long as the debt in question is a clear and obvious one, not a vague claim. There is no exception for those “fired for cause.” For this reason, you should be paid the overtime pay you earned, or payment for the “comp time” you have accumulated, upon your departure.

3. Leave Time (or Vacation Time) is very different; it is not a form of wages, but rather a benefit that is not required by law. There is no law that requires employers to give employees time off for vacation, or personal leave. These are not considered forms of mandatory “wages,” but rather, these are given to employees as non-mandatory “benefits.” So, no federal or state law requires payment of accumulated leave time upon employee departure.

4. That said, if (a) an employment contract (including a union contract) guarantees you payment of leave time when you leave, or (b) your employer does that as a regular practice, then by “contract law” you have a right to it. “Statutes” are laws passed by Congress or state legislatures that give rights. People also have rights by “contracts” or agreements. If you are party to a contract that guarantees you payment of leave time when you leave, such as an employment contract or a union contract, then you must be paid it. In New York, the law says the following: “If your employer has a regular practice of paying people their accumulated leave or vacation time upon departure, then that is considered an ‘implied contract’ that guarantees you that payment, too.”

5. My experience, though, is that almost all employers have a policy that says “If fired for ‘cause,’ you don’t get paid accumulated leave or vacation time.” It is near universal that, upon termination for alleged “cause,” employers give employees only the very bare minimum they are legally entitled to: no severance, no vacation time, and no unvested benefits. My guess is that your employer has such a policy; you need to check with Human Resources.

Bottom line, Bruce, unless you have a contract that gives you more than most employees who are terminated for “cause,” you should be entitled to accumulated comp time, but not accumulated leave time. Some good news, some not-so-good news. “Half a loaf is better than none.”

I hope and trust that, if you do not believe you have committed “cause” to be fired, you will stand up and fight those allegations.

Monies due you (vacation pay, commissions, bonus, wages, expenses, etc.) owed you by former employer? Your best bet is to make a written request. We offer a Model Letter Requesting Monies Due You by a Former Employer. Shows you “What to Say, and How to Say It.”™ To obtain your copy, just [click here.] Delivered by Email – Instantly!

I hope this helps a bit. Thanks for writing in. Good luck in your job hunt!

By the way, tired of all this reading? Rather just sit back, relax, watch and listen? Consider Sklover Videos On Demand. See our Complete List. Just [click here].

Best,
Al Sklover

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© 2011 Alan L. Sklover, All Rights Reserved.

“Laptop missing before I left my former job. Am I responsible?”

Published on July 31st, 2011 by Alan L Sklover

Question: My ex-employer was extremely upset when I quit to go to work for another company. A few days before I resigned, a laptop that the company provided me went missing from the company office. I told them I did not have it.

They kept my last paycheck from me, so I assumed that was the end of it, but now I have received a letter from their lawyer demanding that I return the laptop.

I’m really upset by this. What action, if any should I take?

Jack W.
Richmond, Kentucky

Answer: Dear Jack,

1. An employee is not responsible for the condition or loss of company equipment given to him or her by the employer for use in company business. Whether it is a pencil, a computer or an automobile, if it is damaged, lost or stolen, that is the employer’s problem, not the employee’s. While that general rule could be changed by a written agreement between an employer and an employee, having such an agreement is extremely rare, although I have seen it in my law practice.

2. Your employer’s withholding your last paycheck is a violation of law. Sometimes people think they can simply “take the law into their own hands,” which often gets them in trouble. Your employer had no right – despite any suspicions they might have had that you took the laptop – to withhold your last paycheck. That surely seems a violation of Kentucky law, specifically Section 337.427 of the Kentucky Code. That law provides that, if the non-payment of your wages was intentional, your former employer could be required to pay you double the amount of the paycheck withheld.

You might want to obtain a Model Letter you can use to Demand Monies Not Yet Paid by Your Former Employer.” To do so, simply [click here].

Of course, if your employer is certain that you stole the laptop, it has every right to either sue you in court, where they must establish you did so, or file a complaint with local law enforcement.

3. Consider sending your former employer’s attorney a letter demanding he or she stop harassing you. You have ever right to demand that your former employer’s attorney stop contacting you. If you do, send your letter by a “verifiable” means, such as Certified Mail, FedEx or UPS overnight services. Mention that you are considering filing a grievance with the Kentucky Bar Association, if they don’t “cease and desist” upsetting you. Information and forms to do that are available from the Kentucky State Bar Association at www.kybar.org. I suggest you put in your letter words to the effect that “I remind you that, if you tell anyone that I stole that laptop, that will make you, and your client, liable to me for defamation.”

Jack, don’t get upset; instead, Get Moving. I hope this both motivates and facilitates your standing up for yourself to both collect what you are due, and get your employer’s attorney to stop contacting you.

Concerned that your former employer is bad-mouthing you? Job hunt or new job being threatened or even sabotaged? We offer a Model Letter Expressing Concern about Post-Employment Bad-Mouthing. “What to Say and How to Say It.”™ To obtain a copy, just [click here.] Delivered by Email – Instantly! 

Thanks for writing in. Please consider using our advertisers by clicking to them from our blogsite – that’s how we “pay the bills” and stay online. And please visit us again.

Best,
Al Sklover

© 2011 Alan L. Sklover, All Rights Reserved.

“What recourse do we have after our employer has reduced salaries 10% across the board?”

Published on January 1st, 2010 by Alan L Sklover

Question: My wife’s employer cut all salaries by 10% across the board in early 2009. Making things worse, salaried workers used to work 40 – 50 hours a week; many are now working 60 – 70 hours, six or seven days a week. The company has told everyone that they will “make up” the 10% reduction when they become “healthy,” but we all have our doubts they ever will. Also, the company has paid my wife – on a sporadic basis – overtime for hours she has worked over 50 hours in a week.

First question: How long should we let the “short pay” continue?

Second question: What recourse do we have on ever getting the 10% “short pay” being held back?

Third question: If there comes a time that the company does become “healthy,” can they count the overtime paid to my wife as a credit against the “short pay?”

This has happened to many employees in the automotive supply manufacturing industry.

Andy
Fostoria, Ohio

Answer: To answer your questions, I need to first lay a kind of “foundation”:

How much salary an employee is entitled to is determined by what salary he or she has agreed to with the employer. For example, at the beginning of a job, usually the employer and the employee agree on a weekly salary (or other compensation basis), and then they start to work together on that basis.

It would be unusual for an employer and employee to sign a written contract that says the salary must be kept the same forever. Instead, the employee can walk into the boss’s office any day, and say, “Boss, if I am going to stay, I want $100 more a week.” The boss is free to say, “OK,” or, alternatively, “Go take a hike.”

Same thing goes for the employer: A boss can call an employee into his or her office any day, and say, “Employee, starting tomorrow you make $100 less each week.” The employee is free to say, “OK,” or “No thanks. I am leaving to work elsewhere.”

Somewhere in the middle is what we are hearing about, more and more: employers saying, “Employees, things are pretty rough out there. We have no choice but to temporarily reduce everyone’s salaries 10%, across the board, until our business gets healthy again.” And, of course, while each employee is free to say, “OK,” or “No way; I’m leaving,” most are saying “OK, I have no choice.” This is what seems to have happened (or something close to it) at your wife’s workplace.

Did the company also say, “We promise that the monies you are not getting paid because of the 10% reduction will be added up, and one day it will all be paid to you, no matter what?” Or, did the company say, “We don’t know if we will ever be able to make up those monies to you?” Or, did the company say, “When we raise your pay back up, we won’t owe you a penny for the 10% you lost?” Your letter is not clear, because I don’t think the company was clear. I’m not sure what the company meant when it said it would “make up” the reductions in the future. My bet is that the company did not clearly say any of these things – that is, it was not clear about what will happen in the future because it does not know what will happen. Now, let’s turn back to your questions:

First, you should “let” the “short pay” continue for only as long as you have to. If your wife can find a better job, she should consider taking it. If your wife – and others – can say, “We are leaving if you don’t return our salaries to their former level,” and if they can be successful in getting the company to bring their salaries back up to its earlier level by doing that, by all means she should say that today. My sense is that your wife and her colleagues have little, if any, way to get the “short pay” halted. It’s a very tough situation, there is no doubt. And I have no doubt that others in the automotive manufacturing industry are in the exact same bind, without much of an ability to change it.

Second, whether or not you have “recourse” to get the 10% back depends on what EXACTLY the company said about whether it would ever repay it. From what you wrote, and from what I have read about what many employers are doing, I expect that it is unlikely the company has made a promise to repay the accumulated “reduced” salary. Without a promise, there is no recourse. However, if the company did, in fact, promise to repay all of that salary, your wife’s recourse would be to take proof of that promise to court. As a general rule, oral promises are just as enforceable as are written ones, just a bit harder to prove.

Third, the right to be paid overtime is a matter of law. Overtime and a right to be repaid monies owed for salary reduction are not interchangeable. Said differently, overtime is overtime, and the right to repayment is the right to repayment. One is simply not “counted against” the other.

The saddest thing is that what your wife and her colleagues are facing is more widespread than you might believe. This is the first time that reductions in salary are happening on a widespread basis since the “Great Depression” of the 1930’s. We all are in this economic “squeeze” together, and can do little about it but to help one another. We can hope that this “squeeze” goes away sooner than later, and that people will start to earn, live, save and spend a bit more like they used to. Unfortunately, there is not too much we can do in the meantime, but hope, pray and help one another.

I hope this is helpful. I know it is not, in itself, a source of much hope. But, that being said, one must hope for better times, for that is the only thing that will, in the end, bring about the better times to come.

My very best to you, your wife, and her colleagues.

Al Sklover

© 2010 Alan L. Sklover, All Rights Reserved.

If you would like to obtain a “model” memo to help you collect
monies owed to you by your present employer [click here].


Alan L. Sklover

Alan L. Sklover

Employment Attorney
and Career Strategist
for over 35 years

Job Security and Career Success now depend on knowing how to navigate and negotiate to gain the most for your skills, time and efforts. Learn the trade secrets and 'uncommon common sense' of Attorney Alan L. Sklover, the leading authority on "Negotiating for Yourself at Work™".

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