Sometimes a dispute concerning wages, overtime, or other monetary benefits can arise with an employer. Many people believe that they will have to get an attorney involved if such a situation arises. However, this is not always the case. A wage dispute may sometimes be resolved without legal intervention simply by sending a letter through certified mail, return receipt requested, to the employer advising them of your claim. If you do not receive a response to the first letter, send a follow up letter advising them that you will proceed to legal action if your demand is not met.
If your matter has not been resolved after sending the second letter, you may resort to suing in small claims court to help collect the compensation you are owed if it is an amount up to $5,000. You can do this pro se, but first you must have a valid claim. This means you must:
- Identify the person or business that caused you harm
- Calculate the amount of damages you suffered
- Show there is some basis in law to have a court award you damages
- Be sure you were not the main cause of your own harm, that you haven’t waited too long to start the action, and that you didn’t sign a written release
Usually the claimant will pay a $25 fee and either go to court in person or mail in a complaint which includes your name and address, the name and address of the person whom you are suing, the amount of money you are owed, the facts of your case and the reason you are seeking a remedy.
You can only sue to collect money. Make sure you keep a list of all incurred expenses from your employer including gas mileage, tolls, telephone costs, sales tax, and interest if applicable.
Your employer can respond in one of a few ways. First, they can either deny your claim in writing, appear in court to deny the claim, counterclaim, or settle out of court. If your employer wishes to proceed to small claims court, you will have several weeks to prepare your case. During this time, you should prepare any relevant paperwork including the letters you sent, contracts, tax returns, receipts, canceled checks, etc. In addition, consider any witnesses you may have to attend the trial on your behalf and prepare your testimony.
Holiday parties are great for fellow employees to enjoy each other’s company outside a workplace environment. However, for some workers, the chance to “be themselves” in such a social setting means acting or talking inappropriately in front of others, drinking excessively or making unwanted sexual advances.
Attorney Steven Mitchell Sack, “The Employee’s Lawyer,” suggests ways to minimize litigation that may arise from situations brought on during corporate holiday parties. Mr. Sack’s tips include:
- Distribute a zero tolerance memo for sexual harassment. The document should define what constitutes inappropriate behavior and remind workers that anyone who commits sexual harassment before, during, or after the party will be subject to strict penalties, including possible immediate dismissal.
- Consider making the party an alcohol-free event. If alcohol is served, then the company should hire experienced bartenders only (as opposed to volunteer company employees), who are trained to stop serving liquor to those who have imbibed too much. The company should also consider offering car service where applicable.
- Schedule the party when office hours have concluded to avoid claims of failing to pay wages and overtime for hourly workers who attend the function or are required to attend.
- Consider having the event at a location away from, or not affiliated with, the company. This will reduce the risk of theft of company property, trade secrets, or other valuable assets that can go missing at such events.
- Inform employees to act discreetly when taking pictures. Posting photographs on social networking sites that are provocative or embarrassing can be detrimental to the business. This is not the kind of publicity any employer desires.
“The holiday season should be a time for celebration,” said Mr. Sack. “However, when rejoicing with colleagues during such festivities, employees should keep these instructions in mind. There is no need to ruin an enjoyable experience with unfortunate incidents that could have been easily avoided.”
Mr. Sack has been interviewed on this topic by Legal Broadcast Network.
Most people do not know how to resign properly. The slightest mistake can expose you to a lawsuit or cause the forfeiture of valuable benefits. Some people resign without receiving a firm job offer from a new employer. Later, after learning the new job did not materialize, they are unable to be rehired by their former employer and spend months out of work unnecessarily.
It doesn’t have to happen this way. Problems such as these can be avoided by thinking ahead. A proper resignation occurs when you are able to step into a new job with increased benefits without missing a day’s pay, have no legal exposure, and collect what you are owed from the former employer. Take the following hypothetical for example:
Bari is called into her boss’s office and told that she is being summarily discharged. However, the company states that she can resign by signing a letter of resignation, which it has prepared and presents to her.
Bari thinks it is better to resign than to be fired, so she signs the letter of resignation and leaves the premises. When she files for unemployment benefits, she learns she is not entitled to benefits unless she can prove that she was forced to resign. The company introduces the letter of resignation as evidence that no pressure or undue influence was forced on Bari and it was her voluntary decision; she is denied unemployment insurance benefits.
Bari consults an employment lawyer. She learns that had she not resigned she would have received severance. She also learns that she could have made a deal with her employer (and confirmed it in writing) that although the company would agree to inform prospective employers that she resigned for personal reasons, it would not contest her unemployment benefits or deny paying her other benefits she would have received had she allowed the company to fire her. The lawyer also explained that if she was close to earning a vested pension, profit-sharing benefits, or year-end bonus, her resignation would seriously undermine a claim for those expected benefits.
The golden rule is never to quit a job if you can help it. Refuse an employer’s offer to resign whenever possible. This is because if you resign you may be waiving a claim to unemployment and other severance benefits, including earned commissions. This is a trap many employees fall into.
However, there are occasions when you may receive a better job offer and decide to resign from your current position. Information in this section will tell you how to do so properly to increase the chances that the job at your new employer will not be short-lived. For maximum protection, review and implement the following strategies where possible.
- SIGN A WRITTEN CONTRACT WITH A NEW EMPLOYER BEFORE RESIGNING.A written contract with a definite term of employment (for example, six months or one year) can protect you from situations where the new employer changes its mind and decides not to hire you, or fires you after a short period of time. This often happens with devastating consequences but can be avoided by insisting on a valid agreement with job security before starting work. If the new employer does not agree to this, think twice before jumping ship.
Many clients wish to learn what rights they have after resigning from a job and accepting a position with a new employer. Generally, they forget (or are afraid) to get a firm commitment of job security from a new employer before they resign from a good job. On some occasions, unfortunate workers sell their homes and relocate their family to a distant locale, only to discover they aren’t happy or that the employer is not satisfied with the arrangement shortly after the move is made. They ask if they can sue the new employer for promissory estoppel, misrepresentation, and other related legal causes of action as a result of the new job going sour.
While it is possible to recover money as a result of the new employer’s broken promises, this could have been avoided had they insisted on receiving an employment agreement that contained a definite promise of job security.
Remember, a job is like a romance. Companies woo applicants with promises of fulfillment and riches. Then, when the honeymoon is over, even highly qualified people find themselves being treated unfairly. This is the nature of the working world. Remember this for your own good. Never leave a good job voluntarily without a strong employment agreement from your new employer if you can help it.
- REVIEW YOUR CURRENT CONTRACT OR LETTER OF AGREEMENT. If notice is required to be given, do this so you will not violate the contract’s obligations.
This is an important concern. For example, if your contract requires you to give 30 days’ notice before leaving, you must do so to avoid the company claiming you are in breach of contract. If you do not resign properly, you may be sued for damages. Damages in such cases are typically calculated at the employer’s cost of training a replacement. However, if you resign prematurely at an important time (e.g., during market week if you are a salesperson, or right before a customer is consummating an important deal in which your services are required, but the deal is blown because you leave), the damages could be significant.
There are occasions where an employer will release you from your obligations immediately after you give proper notice. This is because the employer may not want you around for, say, 30 days after it knows you will be leaving. If your contract requires notice, offer it but anticipate, discuss, or seize the opportunity that you may leave suddenly at the employer’s request. If the employer agrees, ask to receive the wages you would have earned during the notice period as part of a severance package. Some employers may be amenable to this.
Finally, since the employer may tell you to get out immediately after you give notice, anticipate this may occur and plan accordingly. Consider removing valuable contents from your office before giving notice, because the employer may tell you to vacate the premises and you won’t have this opportunity later. Get your affairs in order. Select the best time to resign to suit your needs knowing this may occur.
- GIVE NOTICE ONLY WHERE NECESSARY.In many jobs, giving notice is not required or necessary (contrary to the public’s misconception) especially if you are hired at will. However, the employer will usually benefit when you offer notice because it may then have time to seek and train a replacement. It may also give you the opportunity to bargain for additional financial benefits before walking out the door.
Two weeks’ notice is probably more than adequate; avoid giving more notice than necessary. Do not offer notice if you must start a new job immediately and believe this will jeopardize your new position. However, if you are entitled to a large bonus or commission in the near future, postpone resigning until you have received such a benefit.
Many employers often summarily reject an employee’s notice and ask you to leave the minute they are notified of your intentions. The reason is that some employers believe you will copy pertinent documents or cause trouble. Don’t be surprised if this occurs. Anticipate it and plan ahead.
- SHOULD YOU RESIGN BY LETTER?Only when it is used to clarify resignation benefits, request prompt payment of monies previously due, confirm unfair or illegal treatment, or put you on record that the resignation will not be effective until some later date. If these reasons are important, always resign by letter. When you do, keep the letter brief and avoid giving reasons for the resignation without having a lawyer review the letter first. The reason is that the letter may be used as evidence at a later trial or proceeding and can preclude you from offering other reasons for the resignation or tipping your hand in the event of a lawsuit.
The example on page 407 is the kind of resignation letter you may wish to draft. You should deliver it by hand or send it by certified mail, return receipt requested, in order to prove delivery.
- NEVER RESIGN IF GIVEN THE CHOICE.Many employers have written policies that state that no severance or other post-termination benefits will be paid to workers who resign. Additionally, in many states, you are not entitled to unemployment insurance benefits after voluntarily resigning from a job. If you are a commission salesperson, it is often more difficult to argue that you are entitled to commissions due on orders shipped after a resignation (as opposed to after a firing).
STRATEGY: Think twice if the employer gives you the option of resignation or discharge. Talk to a lawyer for advice. It is generally preferable that clients be fired rather than resign, since potential damage claims and severance benefits may remain intact. If you are worried what others may think, you can always negotiate that the employer will tell outsiders that you “resigned for personal reasons” (even if you were fired).
- KEEP QUIET.Tell friends and business associates of your decision to resign after telling your current employer, not before.
- 7. AVOID BAD-MOUTHING.It is not a good idea to tell others about the circumstances surrounding a resignation, particularly if you are leaving on less-than-pleasant terms. Many employers have sued former employees for defamation, product disparagement, and unfair competition on discovering that harmful oral or written comments were made. Additionally, when the statement disparages the quality of a company’s product and at the same time implies that an officer or principal of the employer is dishonest, fraudulent, or incompetent (thus affecting the individual’s personal reputation), a private lawsuit for personal defamation may be brought. Some companies withhold severance pay and other voluntary benefits as a way of getting even. Thus, avoid discussing your employer in a negative way with anyone.
- RETURN COMPANY PROPERTY.Disputes sometimes occur when property belonging to the employer is not returned. You probably must return such property (automobile keys, confidential customer lists, samples, etc) immediately on resignation to avoid claims of conversion, fraud, and breach of contract.
If you return items by mail, get a receipt to prove delivery. A few states permit you to retain company property as a lien in the event you are owed money that the employer refuses to pay. However, since many states do not recognize this, speak to an employment attorney before taking such action.
Sample Letter of Resignation
Name of Officer
Name of Employer
Re: My Resignation
Dear (Name of Officer):
Please be advised that I am resigning from my job as (title) effective (date).
As of this date, I believe that (describe what salary, commissions, other
benefits) are due and I look forward to discussing my termination benefits with
I shall be returning all property belonging to the company (specify) by
(date) and will be available to assist you in a smooth transition if requested.
Thank you for your attention to these matters.
Very truly yours,
Sent certified mail, return receipt requested
Scott A. Lucas of The Law Offices of Scott A. Lucas and Steven Mitchell Sack of The Law Offices of Steven Mitchell Sack have recently helped three women who were fired from their jobs for being pregnant obtain a $6.2 million jury verdict in the matter of Santana, et. al v. G.E.B. Medical Management, Inc., et. al., 305261-08.
In the lawsuit, the three women — two of whom worked as an administrative assistants and another as a biller — established themselves as solid performers, but when it was discovered that they were pregnant or suspected of being pregnant, they were harassed by their employer, falsely accused of poor performance and later fired. The employees had only been with the company for less than a year. Two were fired in October 2006; the third was fired in March 2007.
In 2008, a lawsuit was filed in New York State Supreme Court, Bronx County, citing wrongful termination and the mental, physical and emotional distress the women suffered after being harassed and fired. However, the case did not go to trial until August 3, 2015. After 43 days, on September 15, 2015, a jury ruled in favor of the plaintiffs. The trio was awarded $4.5 million in compensatory damages, $181,000 in lost wages and $1.5 million in punitive damages.
“This verdict sends a message to all employers that they cannot harass and fire women for being pregnant,” Trial Counsel Mr. Lucas said. “They experienced some terrible circumstances as a result of their termination of employment and it is only right they are being justly compensated.”
“It was a very satisfying victory, despite the amount of time it took for the case to be heard,” said Mr. Sack, who served as the plaintiffs’ Co-Counsel. “We fought this battle for eight long years, and truth and justice prevailed.”
For more information, call Mr. Sack at (917) 371-8000.
About Steven Mitchell Sack
Steven Mitchell Sack, “The Employee’s Lawyer®,” has been enforcing workplace rights of employees, executives, and sales representatives for over 35 years. He is a practicing attorney concentrating in employment law, as well as an author of 19 books, a lecturer and syndicated radio talk show host. He obtained a favorable Court of Appeals decision for a group of waiters who were denied their fair share of tips that were held back by a well-known cruise establishment. For more information, visit www.theemployeeslawyer.com.
A class action lawsuit can be used when a number of people wish to participate in a lawsuit but the class is too numerous, or it would be too expensive to try each case separately. These individuals commence a case and retain lawyers to represent them and retain a class representative to represent them and the class. An example of this is hundreds of people who suffer alleged employment discrimination, including sexual harassment and wage and hour violations are now pursuing their job rights through class action lawsuits. In addition, class action lawsuits are also available to challenge a policy or interpretation of a statute or regulation, such as in a Medicaid case.
In order for a case to proceed as a class action, the following criteria must be met:
- The class of people must be a clearly definable group.
- People in the class must have suffered similar harm.
- Most members must be identified and be able to be contacted.
- Members of the class must receive the same fair treatment they would get if they brought individual lawsuits.
When these factors are present, a judge may give the group legal status to conduct their suit as a class action. After a class action lawsuit is approved, the presiding judge will determine the most effective way to notify individuals who may be interested in joining the action. This often involves sending a letter to potential litigants, or posting details about the case in local, regional, or national newspapers. The judge will attempt to ensure that the best interests of all members of the class have been adequately represented by the parties who filed the lawsuit and their attorneys.
Both parties may seek a summary judgement on a class action lawsuit in order to avoid a trial. Defendants often seek a summary judgement before the suit is certified as a class action, in order to avoid a costly trial, but judges rarely grant these motions. The plaintiffs, or class, may also seek a summary judgement ruling after the case has been established, in order to avoid trial expenses while still obtaining class-wide remedies. Judges generally dismiss motions for summary judgements at this point in the lawsuit, preferring to wait until the discovery phase is complete (often a years long process) before approving a settlement and distributing awards. The approval process for settlements generally involves:
- Preliminary approval of the proposed settlement and plan of distribution
- Approval of the form of notice and dissemination to all class members
- A fairness hearing where class members may be heard regarding the terms of the settlement
Class members have two options after receiving notice of a class action lawsuit. They may join, meaning their claim will be treated like all members of the class and then they simply wait for the case to be resolved and are entitled to the benefits of the judgement. Or, they may opt out, which allows the individual to bring their own claim, but does not entitle them to any of the benefits of the class action lawsuit.
While class action procedures differ in state and federal courts, the reality is they often provide the only means for hundreds of claimants to effectively litigate their overtime or discrimination claims by providing for pooled litigation resources and greater settlement leverage. However, if you have incurred significant damages which the defendant has the financial means to pay, it may not be beneficial to join a class action lawsuit and be bound by the terms of the settlement or verdict. Common complaints of class action lawsuits include excessive legal fees, insufficient payouts to claimants, and settlements that limit recovery for future claims. Consult with an attorney regarding you case to evaluate whether to participate in or opt out of a class action lawsuit.
STRATEGY: If you receive notice in the mail describing a class action that might affect you, or if you see an advertisement in a magazine concerning a suit, follow the directions in the notice and investigate the matter. Usually an e-mail address or telephone number is listed. At some point you will be asked to submit proof of your claim, and a court will review it. If you fit the certified class and the group bringing the lawsuit wins, you should receive a portion of the amount awarded or benefit in some way from its success.
While it is always ideal to have a lawyer to protect your legal rights and interests, this may not be possible all the time. If you have limited funds and do not qualify for legal aid, you may be forced to appear on behalf of yourself. Just because you appear pro se does not mean you will lose your case. However, it is necessary to be informed and educate yourself about the procedure and what to expect.
While court clerks cannot give you legal advice, they may be able to answer some basic questions. Here is a checklist of questions for pro se litigants from The Employee Rights Handbook:
- What are the procedures to file your papers with the court? How much does it cost to file an action? Can the filing fee be waived based on financial hardship? If so, what forms must be submitted?
- Are you in the proper court? If not, where should the lawsuit be brought?
- How many months or years will it take for the lawsuit to be heard at trial?
- Do you have proper subject matter jurisdiction, personal jurisdiction, and venue over the defendant(s)?
- What applicable federal or state laws, ordinances, regulations, recent case decisions, and rules of evidence govern the case? Where can you review such laws and cases? Where is the nearest law library open to the general public?
- Is the lawsuit timely or is it barred by the statute of limitations? How should you draft the summons and complaint? What is the most effective way to describe the facts and remedy sought? Are there form complaints available for your use? Where can you purchase computer software or preprinted legal forms for assistance?
- Are there agencies or pro bono lawyers you can call for free advice? If so, where? Do any law schools provide law students as mentors or coaches? If so, where can you find them? How can you obtain a legal aid lawyer?
- If you are seeking injunctive relief rather than money damages, what procedures must be followed?
- Have you named the proper defendants in the complaint?
- What are the procedures to serve your leadings on the defendant(s)? Do you need a sheriff or process server to do this? If so, what is the cost and how do you contact them?
- Should you ask for a jury trial? How do you go about doing this? How long do you have before losing your right to a jury trial?
- When will your case be assigned a docket number?
- What is the name of the judge presiding over your matter? Will he or she handle the case from start to finish?
- Is the judge assigned to your case fair? Does he or she assist pro se litigants in the presentation of their case? Does the judge communicate in short clear sentences, avoid legalese and keep questions simple?
- What important rules does the judge follow? What should you do if you cannot meet scheduling guidelines?
- What motions are available before trial, during trial and after trial? How do you prepare a motion? How do you deal with a defendant’s motion to dismiss a motion for a summary judgment? When is the return date for a motion? How do you properly oppose a motion? Will the judge hear oral argument, or will the motion be denied only upon submission of briefs and other papers?
- What is an order to show cause and how do you obtain one?
- How do you gather evidence via discovery? What is the correct form for written interrogatories, requests for admission, requests for production of documents and depositions? What should you do it an opponent doesn’t cooperate or attend a scheduled deposition? What do you do if an opponent makes abusive or oppressive discovery requests?
- Should you agree to mediation to resolve the matter voluntarily? If so, how does the process work?
- What is a good settlement based on the facts of your case? Should you attempt to settle the case? If so, how?
- How can you compel witnesses to testify via a subpoena who does not wish to appear?
- What are the rules governing jury selection, opening statements, direct and cross examination of witnesses and closing arguments?
- How long will it take to receive a judge’s or jury’s decision?
- If you obtain a default judgment, how do you enter it? How do you enforce a default judgment?
- How do you appeal an adverse decision? What are the chances of winning an appeal based on the facts of your case?
Additionally, if you are a pro se defendant, some questions you should ask yourself include:
- What steps can you take to dismiss the case early on?
- How do you draft and submit the answer, counterclaims and affirmative defenses?
- What is the best way to contest improper service?
- How do you vacate a default judgment?
When filing papers in court as a pro se litigant, sign your name in the same places a lawyer would sign. However, always be sure to include “attorney pro se.”
Damages are awarded to a prevailing party in a lawsuit. They may come in the form of money, or in some cases, the court may order the opposing party to perform a certain action.
Types of Damages:
Compensatory Damages: This is a sum of money awarded to a party that represents the actual harm suffered or loss incurred. Since damages cannot be presumed, one must prove what the actual out-of-pocket losses are. For example, projections of future lost profits will not be awarded unless they are definite and certain.
Incidental Damages: Incidental damages are traditionally direct out-of-pocket expenses for filing a lawsuit and related court costs (such as process server fees). These direct costs of litigation are sometimes awarded to the prevailing party in a litigation as part of the party’s loss.
Liquidated Damages: This is an amount of money agreed on in advance by parties to a written contract to be paid in the event of a breach or dispute. If it is not possible to compute the amount of the loss, a judge may uphold the amount specified. However, in many circumstances, when the amount specified has no actual basis in fact, a judge may disregard it, viewing the amount merely as a penalty.
Nominal Damages: This is a small amount of money (e.g., $1.00) awarded by the court. Sometimes a party may win the lawsuit but not have proved suffering or actual damages.
Punitive Damages: Also called exemplary damages, punitive damages represent money awarded as punishment for a party’s wrongful acts beyond any actual losses. When punitive damages are awarded, a judge is often sending a signal to the community that similar outrageous, malicious, or oppressive conduct will not be tolerated. Under the laws of many states, punitive damages can be awarded only in certain types of lawsuits, such as personal injury and product liability actions, and not lawsuits to enforce employment contracts or business agreements.
Specific Performance: This is a directive for the court by the party being sued (i.e., the defendant) to perform a certain action such as sell a business or not work for a competitor pursuant to a clause in an employment contract. Specific performance is typically not awarded if monetary damages can make the party seeking the relief whole.
Injunction: This is a court order restraining one party from performing or refusing to perform an action or contract.
Mitigation of Damages: This is a legal principle that requires a party seeking damages to make reasonable efforts to reduce damages as much as possible; for example, to secure comparable employment or file for unemployment benefits if a job cannot be obtained in the short term.
If an employer is interested in seeking to stop you from establishing a competing business, or working for a competitor, an action called a preliminary or temporary injunction can be commenced. The employer would then requesting a hearing for an order to show cause immediately after the lawsuit is filed. If a judge rules in favor of the motion, the injunction would be granted and you would be enjoined from the action you were taking.
Attorney Steven Mitchell Sack, “The Employee’s Lawyer,” says fast food workers in New York State do not make enough money and should be able to earn at least $15 an hour. This, he says, will mean not only increased employee morale but employee retention.
One hundred twenty-six elected officials from New York State recently sent a letter to Governor Andrew Cuomo and acting state Labor Commissioner Mario Musolino urging them to raise the minimum wage for fast-food employees to $15 an hour. Currently, the minimum wage in New York State is $8.75 per hour; it is expected to go up to $9 an hour by the end of the year. The state’s wage board indicated it is considering raising the minimum wage but is unsure by how much.
The city of Los Angeles recently enacted a law that will raise the minimum wage to $10.50 an hour by July 1, 2016 for businesses with 26 or more employees and again to $15 an hour by 2020 for larger businesses and by 2021 for companies with 25 or fewer workers. In Seattle, Washington, the city raised its minimum wage to $11 an hour on April 1. The $15-an-hour rate is expected to take effect in three to four years for companies with 501 or more employees, and five to seven years for businesses with 500 or fewer employees.
“The state should follow the leads of Los Angeles and Seattle and implement a raise in the minimum wage that results in workers earning $15 an hour,” Mr. Sack says. “These fast-food workers do not make enough to live on, especially those in the metropolitan New York area — one of the most expensive areas to live in the nation. This will be a win-win: workers will be happier to bring home a bigger paycheck and companies will see a higher rate of employee retention.”
Mr. Sack is available to comment further on the subject.
Attorney Steven Mitchell Sack, “The Employee’s Lawyer,” says a new workplace regulation proposed by President Barack Obama to automatically qualify workers for overtime pay would mean those who work more than 40 hours a week will be fairly compensated.
On June 29, President Obama announced a rule change that would raise the salary threshold from $23,660 a year to $50,440 a year for workers to be eligible to be paid time-and-a-half, beginning in 2016. This would affect approximately 5 million workers in the U.S.
The Obama administration notes that in 1975 sixty-two percent of full-time salaried workers were eligible for overtime pay, but, since then, the percentage has dropped due to inflation. In addition, the overtime regulations have only been updated twice in the last 40 years. The last time that occurred was in 2004.
“It is necessary for companies to pay its workers the wages they deserve and the proposed overtime law is a great start,” Mr. Sack said. “It is not right for someone who works 50 to 60 hours a week to receive a paycheck for 40 hours of work. By paying them time-and-a-half, they will take home more money and will have less to worry about trying to stay afloat financially.”
Mr. Sack is available to comment further on the subject.