Experts, Lawyers, Labor activists or other, seeking advice regarding wage theft

[WhaTHellsgoingonhere]

I've talked about my situation at work here in the past. Specifically, my employer forces us to falsify our timesheets and only pays us 40 hours for M-F when we work evenings, Saturdays, and Sundays. My plan was to hang on as long as possible to get as much unpaid wages back at the end of the road. The end has arrived.

A member here, Major, posted a link to the US Department of Labor. There's an office near me and I can go down there next week. I also contacted a lawyer a while back who said he's never heard anything like this. Said it will likely settle the day he files. That's not really important, but it is an egregious case, that much can't be denied.

Friday is my last day. I'm going to be unemployed, likely for quite some time, meaning no income other than what I can get from a lawsuit. So my question is, what's my next move?

1. Say nothing to my employer on Friday, right? I'm thinking along the lines...ME: "I want to give you a chance to consider (a law suit) before you make your decision."
2. Go straight to the attorney? I just Googled attorneys. Is there a specific someone, organization, or union I should contact?
3. Go to DOL first?
4. Do both 2 & 3?

What you say? and thanks in advance

[elleng]

1. Say nothing to the employer.

Would you consider retaining the attorney you've already spoken with? Is he actually experienced in the field?

You can check with your local Bar Association for possibly experienced attorneys: Employment

2 & 3 sound like good ideas to me.

[WhaTHellsgoingonhere]

4. I love this place!

Yeah, the attorney is experienced in this field. Says he settled with a company the day he filed and the suit wasn't as egregious as mine.

Thanks!

[guillaumeb]

2. First, look at the Fair Labor Standards Act.

It explains the law.
Here is a link:
http://www.dol.gov/whd/flsa/

Second, There should be a Wages and Hours Division of the Department of Labor in your state. That is the Federal agency tasked with this type of complaint.

Third, contact your State Attorney General. They can approach this from a state level.

Good luck.
From a 33 year Union Steward.

[WhaTHellsgoingonhere]

3. I love this place x2

Thanks!

[guillaumeb]

5. glad to help

You do not say if you are represented by a union, but if you are, a complaint/grievance should also be filed. If you have any type of complaint process at your company, unionized or not, please use it. Most federal agencies will defer to an internal process before opening a formal investigation.

Plus if this has happened to others try to get corroborating testimony as soon as possible. Personally, I would keep working while gathering evidence. You might also have a class claim here, and even if you are the only one to whom this is happening you might be able to also file for discriminatory intent. That depends on age, gender, ethnicity, or handicap status.

[WhaTHellsgoingonhere]

7. No union. We're helpers. We take care of others. Social workers. We do it for love, not money

Within a few months, I was talking to others about wage theft. They were totally on board. Then they started to view me as dangerous.

We work in a right-wing paradise: my co-workers are straight out of school, eager to please, and saddled with $80,000 in student loans. That's why the company gets away with their practices. Or if they get sued, they settle and no one is the wiser.

I'm 49, don't have debt, don't have a wife, don't have children. I have much more freedom.

One of the first things the attorney said was "class action," but it would scare my coworkers to death. Attorney also said the office has too few people for a class action. I'm sure the company knows the exact number of employees to place at each office. We're way overworked for the number of people we serve, but I'm sure they won't hire more because of the threat of a class action law suit.

Like I said, Right-wing paradise dressed up as a benevolent not-for-profit.

[guillaumeb]

9. non-profits still have to follow the law.

[guillaumeb]

11. Age is a qualifier for discrimination. You are old enough.

But if this is something that the company does to all the employees in your workplace that makes an FLSA complaint a better option. Again, corroboration is very helpful in these types of cases, as is documentation. Copies of the timecards would be helpful, especially if the information has been changed on them. The timecards, plus witness testimony, would be enough for the Department of Labor to open a case. If you contact then they can advise you exactly how to file.

The same goes for your State Attorney general. Each state has a Wages and Hours Division for wage complaints.

As to class action and number of employees, I am not an attorney but if the company has workers at many locations and does the same thing at every location I am not aware of a size qualifier for a class action.
Here is another link to explain the concept:
http://resources.lawinfo.com/civil-litigation/civil-procedure/class-action/how-many-people-are-needed-to-bring-a-class-a.html

[WhaTHellsgoingonhere]

17. Yeah, he said that. Each office is an island

Attorney wanted to go class action, but I can't even get my coworkers on board, and finding people at other offices whom I've never had any contact with...

But, of course, I've got nothing but time to research.

I'm really beginning to think the company knows a few things:

1. few people will actually sue them
2. like all fat bastard companies, law suits are part of doing business
3. they settle so the lawsuits that are filed never see the light of day

I've been documenting what I can. The Director and my supervisor are going to have to lie under oath, repeatedly, for hours. My supervisor doesn't have the chops to lie under oath. Both are good Catholics. We'll see how that plays out.

[guillaumeb]

19. few people have the resources to sue

or are not aware of their rights and what state/Federal agencies can help them.
If you can get copies of any altered timecards that would help a lot.
Plus if the timecards show you as not on the clock, is there any video surveillance that can show otherwise?
Or did you fill out any patient forms on days that you were not "officially" there?
Any record keeping forms that track patient contact?
If it is home contact, any chance of patient testimony?

These cases can be won, often easily, with sufficient documentation. I have done so. Any competent labor law attorney will know what documentation is necessary.

[WhaTHellsgoingonhere]

23. Attorney said he can get access to all the work EVERYONE...

does after hours from our server.

I've also kept text messages and email of all of us working at all hours -- including holidays (I kept all this) -- and my supervisor supervising it all.

The timesheets are electronic. Maybe the attorney can find that mine was changed after I submitted it. Anyway, they know they did it.

I still have access to my email and server for another day. I'll keep digging for evidence.

[guillaumeb]

24. if you record work interactions electronically

can you copy your files including your work records remotely? If so I would consider copying all my emails as an option. If you can match the work emails to the electronic records to prove the time records are false that would be huge.

Again, good luck and good night. I hope you update us on your progress.

[WhaTHellsgoingonhere]

27. Yep, I've been doing it all remotely all along

When I started sniffing them out, I started documenting on my end. I just haven't told them, but I really want them to know I have been doing this someday.

[WhaTHellsgoingonhere]

6. Oh yeah, we all "officially" were asked to work Saturdays...

so I recorded it on my timesheet before asking (forcing them to tell me we couldn't report our Saturday hours). They then changed my timesheet. They were nice enough to tell me they were changing my timesheet.

[guillaumeb]

8. that is a prima facie violation of the FLSA

unless, a big qualifier, you are an exempt employee.

What do you do, and what are your duties? Do any of your duties include supervisory or managerial functions? If so, you might be an exempt employee.

I handled these types of complaints for my union local.

[WhaTHellsgoingonhere]

10. I make almost $14/hour!

And employers are mandated by law to pay overtime in Illinois.

I'm doing the same job as a 21 y/o. Entry level! No exemptions, etc..

[guillaumeb]

13. Overtime is mandated EXCEPT for exempt employees.

If you do NOT have supervisory, managerial, or some executive type decision making functions, you probably qualify for overtime. The law does NOT provide for overtime for exempt employees, or some classes of employees who receive compensation time off in lieu of overtime.

Please check out both links I provided and you may be able to prevail in a complaint. Plus the State of Illinois has wage and hour regulations that will help you.

Again, good luck

[WhaTHellsgoingonhere]

15. Will do! Absolutely. I felt lost an hour ago. There had to be something better than Google

Found it right here.

[guillaumeb]

16. I received my training from my union.

I do not know if you like bluegrass, but give a listen:

[WhaTHellsgoingonhere]

18. HA! I saw Billy Bragg years ago

[guillaumeb]

21. really like Billy Bragg

his politics and he wrote the song.

[msanthrope]

12. Are you quitting? Let them fire you. And don't do #1.

Collect any evidence you can of working overtime. Depending on what state you are in, you might be able to recover wages through them.

[WhaTHellsgoingonhere]

14. I let them fire me! Director called me after work to tell me...

...don't come in tomorrow. "Your boss and I have to GATHER INFORMATION then we'll speak to you Friday morning. Don't contact your coworkers."

I should have asked about getting fired months ago. That was my gut but it was stupid of me not to ask if that was the right thing to do.

Thanks for that piece of advice. It's not too late because it comes as great news, like, I was right! That's the most important thing.

[msanthrope]

22. You aren't fired yet. Sounds like they are trying to fire you

for cause, which will screw up your unemployment. Send an email in the am to the Director, documenting the conversation...specifically, where he told you not to come in.

[WhaTHellsgoingonhere]

25. OK, so what you are saying is I do as follows:

To: S

S,

Per our phone conversation the evening of Wednesday, April 15 at 6:42 pm, you called to tell me not to come to work Thursday. You explained you need to "gather information" then you want to meet with me and my supervisor Friday morning. You told me not to contact any of my coworkers. I was not at the office at the time of the phone call.



Oh, yes, they are going to fire me for cause for certain.

Can I collect unemployment if I'm suing a company?

The whole unemployment thing gets me thinking I need to get some money ASAP, which is why the attorney is attractive. I've been laid-off before. The company said I could get my severance only if I signed away my right to sue them.

[msanthrope]

32. Good email, and yes, you can sue and collect

unemployment. Accepting the severance? That you should speak to a lawyer about....you want to be careful about either waiving your right to sue, or otherwise collect back wages.

[WhaTHellsgoingonhere]

33. Thanks for the advice and reading my email

[WhaTHellsgoingonhere]

34. should I keep it simple or raise the stakes

I actually could say something like...

This is one of multiple phone calls or other forms of correspondence I've received from you and my supervisor after you've asked me to sign out at 4:30.


Too much?

[msanthrope]

35. Perfectly fine to add. There's never "too much"

documentation. I mentioned before, and someone mentioned below.....your State should have a mean of collecting your back pay. Look for a state wage/labor board.

[WhaTHellsgoingonhere]

36. Documentation! What do you think about this

I go into my meeting Friday with a laundry list of their transgression and as them to initial each one.

For instance,

1. S, after I recorded working on Saturday you told us we had to report our time the same way. ________

2. L, you told me that we won't be reporting time we've worked on Saturday and will change my timesheet. ________

on and on...


For the most part, it's my word against theirs in matters like this. They'll have to lie about everything.

I'll probably couldn't get my coworkers to join a class action, but I could probably write up some things like...


1. C, you were present and recall S telling us we can't report the time we worked on Saturdays. __________

2. D, you recall S telling us via email that we couldn't report our actual hours and that we have to report them a specific way. _______


What do you think about that? Earlier responded said say nothing to bosses. I totally get that, too.

[msanthrope]

37. no......I would not do that. I would listen on Friday and document later.

I would also ask for copies of whatever you're presented with tO sign telling them that you're willing to sign after you had a chance to read them in private.

[WhaTHellsgoingonhere]

38. and by read them in private, you mean with my attorney?

My guess is they'll leave me in his office to read the documents in privacy and will expect me to have them signed before I leave. I wasn't planning on signing anything.

[msanthrope]

41. Sign nothing. Request copies to take with you, to read in private.

Above all, be calm and disengaged. If they say no to something, document it.

I would not mention any legal action you are pursuing.

[WhaTHellsgoingonhere]

42. Poker Face: That's the kind of stuff I'm not good at and need to be told :D

Thanks!!!!!!!!!!! x1000

[WhaTHellsgoingonhere]

39. I'm not even planning on reading anything

[lonestarnot]

20. treble damages rumbling around somewhere.

[WhaTHellsgoingonhere]

26. Good to know. I kind of thought so since there's so much illegal behavior and intimidation

[gvstn]

28. You might be jumping the gun on suing as that runs into money.

Your state Labor and Wages office should get back wages for you since that is their job. Nothing extra but they should be able to get you back pay.

Getting fired does eliminate unemployment but you can always fight their "for cause" claim. The fact that they were cheating you on wages should make their sudden decision to fire you very suspect and I would think unemployment office would make a determination fairly quickly. If your supervisor is not a good liar the unemployment officer should see through that easily since they deal with this type of thing every day.

[WhaTHellsgoingonhere]

31. That's good to know, too

[gvstn]

43. I just wanted to clarify a bit on how I have seen these things go.

First thing you have to know is that when someone claims unemployment it costs the business money. They pay insurance and when they have multiple people signing up for unemployment their insurance goes up. So there is a financial interest in them getting you to quit rather than be fired. When you are fired you can still go to unemployment and argue your case that it was really a layoff or unjustified. When you voluntarily quit you don't really qualify for unemployment because you actively quit working there by your own choice. (You may be able to say you were pressured into quitting but for simplicities sake I wouldn't go there. Your employer knows they have a wage and hours problem too.)

Usually, they will try to get you to quit by bringing up a petty offense and then giving you a choice of getting fired because you violated the rules with the condition that you get no references (a big threat) or going ahead and quitting for any reason and they will state that reason to anyone who calls for a reference(an incentive to quit).

ie.
John, you were seen eating at your desk on March 14, 2015. You know that is against the rules. You were given an employee's rule sheet that listed this as an unacceptable act. I don't want to fire you for this but the rules are there for a reason. I'm sorry but I have no choice. If I fire you then I must tell potential employers that you were fired for violation of workplace rules. But, I'll give you the choice of quitting now and you can write your own resignation letter stating that it was for family emergency or something like that and I will give that reason to potential employers.


The above is the simplest way for them to avoid unemployment and terminate your position. Don't quit. Don't argue all your points of contention in this meeting. You will have to go to unemployment office on Monday and say this was an unjust firing. Then unemployment will separately interview you and the employer and then set up a meeting to discuss things. This is a better situation then you giving your employer too much information during a meeting between just you and himself and someone"his witness" who is there to corroborate his side of the story.

****
You have a couple things going for you such as wage theft and a sudden dismissal as far as a lawsuit, but that is later's work.

On Friday, I would try to stay calm. Listen to whatever reason they are saying is the reason for your dismissal. If applicable, say that it isn't true. If it is possibly true, simply say that you are not going to quit. Then let them fire you and say something like, I will see you at the unemployment office (Or better get the exact name in your state of the "unemployment office" and use that ie. Missouri Division of Employment Services or whatever. This lets them know that you will be ready to fight the reason for dismissal.) Remember: the theft of wages hasn't even been discussed that is something you should not bring up in this meeting with your boss--it is your extra leverage to ensure unemployment gets paid.

They have already planned out this meeting and the more you say the more damage you do to yourself. Let them do what they planned to do but don't quit. Let them fire you and then during discussions at unemployment or a lawsuit you can get them to absolutely reverse the threat of a bad reference which is really their only viable threat. They think you want this to go away but you want what is right and will fight for it. They will back down over a fight especially when they know they are wrong.

Edit: One last thing I would do if they are being jerks is give a stern look at the end of the meeteing and say, "What you are doing here is wrong". When they say something else just repeat, "What you are doing right now is wrong". This gives the boss and more importantly the witness a little time to think before they have to be interviewed by someone else. Don't go into details let them stew about what will come next. The less details the better. You know what happened (so do they) save it for a forum where someone will actually be on your side.

[WhaTHellsgoingonhere]

45. "...reverse the threat of a bad reference"

Interesting.

Their petty claim against me is I text too much and I've been told that I do on more than one occasion. The texting too much rule only applies to me. We work as a team but we're alone all day in the field. We group text serious things, like "I got a flat tire, can you see this client" or fun stuff like pictures of a meal a client cooked and a statement "He said you have to eat, you're a growing girl."

But because I text to much, I get texts like the one I got the morning of April 10 from my supervisor. "Only make need-to-know texts." The rest of the day, the girls were texting about "sweating their ass off in traffic without a/c" and "client is rolling on the ground with puppies (with pictures)". We all love it, even my supervisor. Oh yeah, she's texting right along with the girls, "Aw, that's so cute!"

I kept all of this.

But the REAL reason they are firing me is that the 21 y/o hates me. I'm not sure why she hates me, but my supervisor sees the eyerolling, head shaking, angry looks, deep breaths, big exhales, and "bitchy faces" (her words!) every time I speak. My supervisor said she sees her do it to the only other male, too, the staff nurse who sits in during our meetings infrequently. My supervisor said it creates tension and makes the meetings awkward.

This began 6 months ago or more. I followed protocol. I talked to her directly about it. She (figuratively) spit in my face. Her behavior didn't change. I talk to her a second time. Same condescending response, behavior didn't change.

Meanwhile, my supervisor kept telling me she would talk to her about it (never did). So I kept pressing my supervisor. Finally, my supervisor said she'll bring us together and the 3 of us will work it out. That never happened. So I kept pressing my supervisor for that meeting.

That's when my director started meeting with me and my supervisor to show her how to supervise. He ranted and told me to get over it while she sat and watched.

In January, I wrote all of this up and emailed it to HR.

I just kept pressing...because "THEY ARE WRONG!"

But it gets better. Last week the director was on vacation so my supervisor went to the top of the food chain and brought in the director's boss, who, totally took my side. She said, "yes, this is wrong. We are a team. We cannot disrespect one another. When it happens it has to stop."

I told the boss's boss that the supervisor and director have never supported me and that I have nowhere to turn. I send texts even because I have no other recourse. Then I made my supervisor answer my question: "Next time it happens, you will do what?" My supervisor said, "Then I will talk to her about it right after the meeting (that's something she does with me but has refused to do with the girl)."

On Wednesday, I texted too much about a client I was driving who was threatening to jump out of my car and run into traffic because he was feeling suicidal and I'm getting fired on Friday.

[WhaTHellsgoingonhere]

47. when they ask if I want to make a final statement, can I say...

Sure, why aren't you firing her?

[gvstn]

49. Again don't go into to much detail about your grievances during any meetings with your supervisors.

It sounds like you may have been questioning your supervisors actions too much. You say that you have been detailing their improper actions to HR but HR didn't see a problem. Which is normal but it may point you out as a troublemaker to HR.

Friday, you just have to let them fire you and keep your mouth shut as much as possible. If texts are a problem then say you just wanted to keep your coworkers informed because you thought it was important.

On Monday, you go to Unemployment Office and tell them what happened. You thought you were doing the right thing but they fired you instead of trying to actually help clients. Then it is up to Unemployment to figure out who was in the wrong.

Keep in mind that you don't have a right to tell your boss he is a jerk and still expect to keep your job. You do have a right to collect Unemployment benefits when you are fired for some unjust cause such as texting too much, which you did to keep you coworkers informed.

You definitely have the right to collect unpaid or underpaid overtime hours but this is separate and a different State agency than from unemployment benefits which you should secure first.

So let him fire you. Go to Unemployment and fight for benefits. Then go back for the unpaid wages at the appropriate State agency.

[WhaTHellsgoingonhere]

50. Yeah, when they took sides against me, I started think one thing...

...ride it out because you are trying get back unpaid overtime, not regular wages.

There's so much crazy making there, I used that knowledge as unrealized leverage to make my days easier. It wasn't all bad. Aside from the 21 y/o, the director, supervisor, and I got along great and laughed a lot. Even when they were upset with me. I don't pout and have am generally happy. They know it and like that about me.

The HR thing was probably bad advice because I didn't know what else to do. But it's done now...

Thanks for getting back to me! I have a lot of ideas. I need to be told which are the bad ones.

[WhaTHellsgoingonhere]

48. when they ask if I want to make a final statement, can I say...

Sure, why aren't you firing her (21 y/o)?

[flvegan]

29. Talk to a lawyer. This place hates them, like cops

until they need them. Good luck to you.

[WhaTHellsgoingonhere]

30. The whole "fear of losing unemployment" thing gives them so much power

I think I will definitely sue.

Who knows, maybe I'll find work sooner than later.

[WhaTHellsgoingonhere]

40. This is a beautiful thing. Must read my email log with my supervisor

Last edited Thu Apr 16, 2015, 11:30 AM - Edit history (2)

So I've worked at this place for a year and not once have they ever said we can report overtime. Then last week I was sitting in the emergency room waiting room with a client until 8:30pm. So I text my supervisor, "L". Here's the transcript. Keep in mind, we have to record our time as follows:

in 8:00 out 12:00*
in 12:30 out 4:30

*this is an inside joke because none of us have time to take a 30 minute break. work, Work, WORK!


Transcript:

5:25pm
L: Do you want to come in late tomorrow? Leave early? Or get overtime?

ME: That last one threw me. How do you get OT?

L: You put in your REAL HOURS for today so you will work 40 plus the extra hours you put in. It's only allowed with prior approval but I will request it for you.

ME: Ah, yeah, never heard of that policy.

7:35pm
ME: Hey, I have a question. So it'b be great if they called us soon, but at some point I have to go home to my dog.

7:47
ME: They just called us!

7:51pm
L: They will have to get him back to the nursing home. That's NUTS* you guys have to wait so long.
*nuts, crazy are bad words in our field. We've been to sensitivity training. She shouldn't be sending out texts to staff labeling situations as "nuts." And certainly not to me of all people because I was hired expressly because I am mentally ill. My title is different from the others because I am the team member with a mental illness.

8:31 (leaving hospital)
ME: I'll do 4 hours OT. Thanks for letting me know I could do that.

-No reply-

[Omaha Steve]

44. The DOL is free

After a probably free consultation a lawyer will tell you what can be done, but it would cost you.

Good luck.

[WhaTHellsgoingonhere]

46. Thanks

Yeah, I'm getting my game plan together.

Unemployment, Labor Board, DOL, attorney

[WhaTHellsgoingonhere]

51. Update #1: They wanted me to quit but wouldn't fire me

Came across like HR wants to fire me, I could tell my supervisor voted to fire me, but they know I chirp about unpaid overtime with supervisor and coworkers. I'm not shy about it. I think they are afraid of what I will do. So they gave me one more chance before they fire me.

I sound like a complete prick. I'm not. I'm really good at what I do and anyone would want to have me on their team. I'm honestly the best in the company in my position because of my age, gender, and experience and ability to connect with all the clients. I'm the only "diversity" on the team. I work with middle-class to upper-middle class, well educated white girls who are just out of school. Back when my when I was tight with my supervisor, I told her I feel like the girls are pulling back when I'm trying to move clients forward. The supervisor said, "They're young and don't know what they're doing. You're doing a great job!"

I'm also the funny guy! I keep people laughing, including the director. After every attempted "beat down" (pfft), I walk out of the meeting unphased and am making the director laugh so no one is the wiser

Now...does anyone think I should go to DOL before I get fired?

[WhaTHellsgoingonhere]

52. Update #2: If it feels like intimidation, is it intimidation?

So, surprise!, I didn't get fired.

After I was told to stay home while the director and HR got their ducks in a row, I met with the director and supervisor the next day. The upshot of the meeting was that I was on the thinnest of thin ice and if I slipped it would be grounds for termination. Then the director made some prepared comments: "Well, aren't you concerned about getting fired? I mean, won't that look really bad?" to which I replied, "I absolutely am concerned but I should be able to fix what's broke, and if I can't, I'll accept my fate."

3 weeks pass and all is good.

Then a week and a half ago the director says, "Hey, did you get an email from (said) company? It's not a big deal. HR just hired a new company to do background checks and want one on you."

So we chit chat and make nice and laugh at things we've overcome and he says he likes me and nothing's happened in 3 weeks so that's good. So then I ask him, "Do you even want me on your team?" He says, 'Yes, I do."

The next week and a half is great. That brings us to today.

I get the email from the background company that says my employer has requested to do a background check and I have 48 hours to complete it. If you have questions, call 800#. So I call the 800# and tell them to send me a file so that I can read through it and I'll mail it back. They said they can't do that. So I ask, "Why are you doing this?" He asks, "Are you a new hire?" I reply, "No. I've been with this company for more than a year. Why am I being asked for one now?" He says, "I don't know." So I ask, "Who ordered this?" The guy gives me the name of someone in HR.

I email HR the following:

I received this email this morning from (company). Of course I have questions, so I called the 800 number they provided. They referred me to you. I have a couple of simple questions and a request to ask of you. First, I'm not a new hire, I've been with the company for over a year. Is this standard procedure after a year of employment? Why are you requesting this background check of me now and not when I applied for the position in early 2014? Second, as I'm sure you will agree, the term "background check" is rather vague. For instance, many companies look at someone's credit. I'd like to know specifically what it is you'll be "screening" me for before I start clicking on boxes that read "you understand." Frankly, I don't understand.

They just won't relent. This is their 3rd run at me. I do feel like they are trying to intimidate me so that I quit.

aside: It seems like the didn't do their due diligence a year ago and run a background check, and now they want me to help them save some face. No thanks!

Thoughts?

[WhaTHellsgoingonhere]

53. Update #3: DOL!

Front desk said we love this kind of case! Someone will get back to you in a few days