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F Ellis’s Answers

5 total

  • How do I get my previous employer to pay up?

    I am an independent contractor. I receive a 1099 as my only proof of income. I have some tax issues, which prevents me having a bank account. A company I sub for was to hold most of my income for the past 3 years, until I had enough money to sett...

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    You may have a couple of options. You state you were an "independent contractor," but you may actually have been an "employee" for wage comliance purposes. If you can demonstrate that you should be classified as an employee, then your employer "friend" was likely required by your state's labor laws to have kept payroll and time records of your work hours and earned wages. In Massachusetts where I practice, an employer who fails to pay correct or timely wages must pay triple damages, plus interest at 12% per year and attorney's fees. The distinction between an independent contract and an employee for wage compliance purposes essentially comes down to this question: Is your business (as a independent contractor) fundamentally different than the business that you have contracted with? For example, if you were a graphic designer who contracted with a bakery to design a logo, you are an independent contractor. However, if you are a professional cake decorator and you contract with a bakery to decorate all of its cakes on site, 40 hours per week, you are likely an employee for wage compliance purposes. (this should not be confused with the IRS's independent contractor/employee test to determine whether a person should be paid as a Form W-2 worker or a Form 1099 worker for tax withholding purposes.

    Second, you may have a claim called "unjust enrichment" or "quantum meruit." This means that even though you may not be able to demonstrate that you had a binding contract with your friend, it would be unjust for your friend to enrich himself, i.e. retain the value of your wages to his benefit, provided you can prove that you performed the work, that it benefitted your friend, and you were not compensated.

    It is both a civil and criminal offense to provide false wage information on a Form 1099 filed with the IRS. If challenged, your friend would have to show evidence that he paid you either by check or in cash all of the money stated on the Form 1099. I recommend that you consult with an attorney in your state who specializes in employment law. I believe you have some viable claims.


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  • Can my Employer deduct wages from my pay and not pay me overtime?

    I worked for a company here in phoenix for 2 years. When I first went to work I signed some agreement but do not know the contents. After 1 month I was forced to quit do to family medical issues. I was rehired by the company 16 weeks later and nev...

    F’s Answer

    There are a number of "ifs" and "it depends" embedded in your question. It depends on which state you live in; every state has its own unique set of statutes, codes and regulations. What was the agreement that you signed during your first round with this employer? If it was a contract, then it very likely lapsed when you had to quit work. Unless you signed a new one when you were re-hired, the original one is not in effect. If you signed a confidentiality or non-compete agreement, they would likely survive your resignation in whole or in part, usually for a time-certain.

    On the deduction/wage issue. If you are a member of a union, you may have no choice but to permit certain deductions from your paycheck, such as union dues, pension contributions, etc. Also, an employer usually has no discretion but to deduct estimated income taxes, FICA contributions, medicare/medicaid contributions, etc. from an employee's paycheck. Also, some Employee Stock Ownership Plans (ESOPs) allow an employer to deduct monies to deposit with the plan on behalf of the employee. However, if your employer deducts other unrelated monies from your gross pay without yor consent or authorization, in most states you can sue you employer for a wage violation. In Massachusetts where I practice, failure to pay an employee's wages in a timely fashion results in mandatory trpple damages, interest at 12%, and attorney's fees.

    Regarding overtime; there are very few exceptions to the general rule that an empoyee who works more than 40 hours during the work week must be paid at 1.5 times their regular houry rate of pay for an hours worked over 40. In Massachusetts, failure to pay correct overtime wages also results in triple damages, legal interest and attorney's fees. There are few if any defenses available to companys that fail to pay their workers on time and in the correct amounts.


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  • Can the first employer terminate my employment because I used my 2nd job's vacation time to go to the 2nd job?

    I work 2 jobs. Due to economic downturn my second job hours were changed and it conflicted with the hours of the first job by 4 hours. As I had carried vacation time into 2009 for the second job I used my vacation time to go later at the second ...

    F’s Answer

    This is an interesting question. Technically, if you were an "at-will" employee, your employer can fire you for any reason, provided it does not do so for a unlawful reason, i.e discrimination, retaliation, etc. The tort of "wrongful termination" occurs when an employer fires an employee and the circumstances surrounding the termination are held to be in violation of an established public policy. Under federal law and many states' laws, a person whi has been fired for "whistleblowing," i.e. exposing unlawful conduct to a law enforcement agency or exposing serious health and safety violation may sue their employer. A common law wrongful termination claim needs to allege that the person's firing was unlawful because it violated an established an accepted public policy, such as the promotion of public safety. In you case, while it is none of your first employer's business how you use your earned vacation time, it can still fire you if you are an "at-will" employee. However, it is conceiveable that a court could rule that your termination was in violation of public policy on the grounds that the freedom to use one's earned "vacation time" however one chooses is an established public policy. This is a long shot, but a novel legal issue. Also, I wonder if your termination could somehow be declared unconstitutional because it violates your right to associate withwhom ever you wish.


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  • Can my past employer call my new employer to "advise" them that I quit without notice, and how "bad" of a worker I was?

    I quit at my last job without notice for several reasons, but my ex-boss called and said that if I did not work out a two week notice and work that he would call my present employer and tell them I quit without notice and that I was a bad worker. ...

    F’s Answer

    A former employer may say anything it wishes about a former employee, but certainly risks a defamation lawsuit if it makes statements that it knows to be false and which it reasonably should have known would cause damage to the former employee. It is for this reason that most employers are cautioned to respond to requests for references by only disclosing the former employee's job title and duties, dates of service, and in some cases, salary range. There is a fine line between a statement that is considered an "opinion" and a statement that is defamatory. In your case, if you were an "at-will" employee (as opposed to a union member working under a collective bargaining agreement, or an employee with a written employment contract) you could quit your job at any time with or without notice (similarly, your employer could fire you with or without notice at any time and for any reason, provided it did not do so for an unlawful reason such as discrimination). It is therefore disingenuous at best for your former employer to state to your prospective employer that you were a "bad worker" because you allegedly resigned without notice. The statement that you were a "bad worker" is probably not defamatory because a court would likely rule that this is an opinion. However, there may be grounds to sue your former employer for intentional interference with advantageous relations, if you could demonstrate that your were either offered the new job or hired for the new job, but that your hiring was subsequently revoked or rescinded as a direct result of your former employer's statements.

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  • Mcad and employer background checks

    Question- MCAD specifically prohibits asking about, maintaining records of, or basing any hiring decision on a criminal record under certain circumstances. My question is- would that cover all ways of obtaining that info? Via Cori or another bac...

    F’s Answer

    A prospective employer may ask an applicant if he/she has been convicted of a felony within 5 years of the date of their application. Moreover, a prospective employer may, if qualified to do so, obtain Criminal Offender Record Information (CORI) regarding an applicant for employment. Employers in certain businesses (transportation, financial services, healthcare, and public education to name a few) are often required to research such information and may be required by law to deny employment to applicants whose CORI search reveals unsatisfactory information. Moreover, in some cases employers who are not legally required to search the CORI database, may choose to do so anyway in order to reduce the risk of being targeted for a lawsuit based on negligent hiring and retention, should it hire an employee with a criminal conviction background who subsequently commits a crime that injures or damages a third-party.

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