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Bounced Commission/pay Check

Discuss Labor Laws

Bounced Commission/pay Check

Postby Daveon » Tue Dec 06, 2016 4:04 pm

My daughter is residential real estate appraiser in NYC. Although she was classified as an independent contractor who received a 1099, the company clearly treated her as an employee.  They told her where to work; was required to attend meetings; was required to perform all her office work on their premises, etc. They maintained full direction and control over all her work. Last week she received her commission check for  September, 2010.  The check bounced.  The company is giving her the run around, putting her off, making excuses.  They still owe her October and November.

I am certain she been misclassified as independent contractors and was, in fact, an employee.  Either way, what recourse does she have to get the money(approx. $27,000 in total) that she has earned.  Thank you so much for your time.

ANSWER: Judy - Your daughter can approach this in one of two ways.  She can sue the company as an ordinary creditor.  This approach may require an attorney - I am not familiar with local trial court procedures in NYC.  Usually the hardest part is figuring out how to collect the judgment if you are successful in the litigation.

The alternative is to file a complaint with the NYS Department of Labor claiming that wages are unpaid.  She would have to make it clear to the agency that she was an employee misclassified as an independent contractor, but that is such a common problem they should have no problem with accepting the employer/employee relationship, an essential part of the wage complaint rules.

Now to real world issues - does your daughter want to sever her relationship with this business?  Suing them is likely to cause that result.  So is filing a wage complaint with the NYSDOL, an agency noted for its aggressive stance on behalf of employees.  If she wants to continue the relationship, she should have a meeting with one or more of the principals of the company to work this matter out.  On the other hand, if the company is having financial problems, maybe this is the time to move on.  If she files her claim before the company files for bankruptcy, for example, she would have some rights as a creditor.  If she waits, those rights could be compromised.  

There is no simple answer to this dilemma.  I hope your daughter is able to get her money without taking legal action, but that option is there if the employer refuses to fulfill its obligations to her. ---------- FOLLOW-UP ----------

Thank you so much for your reply.  She has left that company and moved on to a company where she is definitely an employee.  The owner of the company who owes her this money could be doing it for spite(which would not be unheard of for him).  The company is viable.  While she does not wish to burn bridges, this is not a company she would ever do work for again.  They have for years and years been treating all their appraisers in the same manner as my daughter.  She was there for twelve years and was the most senior appraiser.  I think the DOL is the way to go.  I'm hoping he is frightened of being assessed for a couple of decades that he did not pay taxes on any of his appraisers, and will pay her the last three commission checks he owes without delay.  Thank you again for your reply.  It will be very valuable in how she pursues this.  I hope you have a happy new year.
Daveon
 
Posts: 48
Joined: Wed Jan 15, 2014 11:10 am

Bounced Commission/pay Check

Postby Caine » Tue Dec 06, 2016 6:02 pm

Judy - I agree with your analysis.  The states are looking around for untapped funding sources, and back wages that have taxes owing are looking very good to them.  I also agree that your daughter probably should have been classified as an employee rather than an independent contractor.  You could advise her that the IRS also pursues back taxes from employers who deny employment status of employees, and there may be a "bounty" for the person who turns in the tax cheat.  I understand about not burning bridges, but I also believe that bad people should be punished - call me old-fashioned.  

She should advise her current employer of the situation before she takes any steps, to avoid potentially embarrassing unintended consequences.
Caine
 
Posts: 38
Joined: Sun Feb 16, 2014 6:20 pm

Bounced Commission/pay Check

Postby clem84 » Wed Dec 07, 2016 4:03 pm

My daughter is residential real estate appraiser in NYC. Although she was classified as an independent contractor who received a 1099, the company clearly treated her as an employee.  They told her where to work; was required to attend meetings; was required to perform all her office work on their premises, etc. They maintained full direction and control over all her work. Last week she received her commission check for  September, 2010.  The check bounced.  The company is giving her the run around, putting her off, making excuses.  They still owe her October and November.

I am certain she been misclassified as independent contractors and was, in fact, an employee.  Either way, what recourse does she have to get the money(approx. $27,000 in total) that she has earned.  Thank you so much for your time.

ANSWER: Judy - Your daughter can approach this in one of two ways.  She can sue the company as an ordinary creditor.  This approach may require an attorney - I am not familiar with local trial court procedures in NYC.  Usually the hardest part is figuring out how to collect the judgment if you are successful in the litigation.

The alternative is to file a complaint with the NYS Department of Labor claiming that wages are unpaid.  She would have to make it clear to the agency that she was an employee misclassified as an independent contractor, but that is such a common problem they should have no problem with accepting the employer/employee relationship, an essential part of the wage complaint rules.

Now to real world issues - does your daughter want to sever her relationship with this business?  Suing them is likely to cause that result.  So is filing a wage complaint with the NYSDOL, an agency noted for its aggressive stance on behalf of employees.  If she wants to continue the relationship, she should have a meeting with one or more of the principals of the company to work this matter out.  On the other hand, if the company is having financial problems, maybe this is the time to move on.  If she files her claim before the company files for bankruptcy, for example, she would have some rights as a creditor.  If she waits, those rights could be compromised.  

There is no simple answer to this dilemma.  I hope your daughter is able to get her money without taking legal action, but that option is there if the employer refuses to fulfill its obligations to her. ---------- FOLLOW-UP ----------

Thank you so much for your reply.  She has left that company and moved on to a company where she is definitely an employee.  The owner of the company who owes her this money could be doing it for spite(which would not be unheard of for him).  The company is viable.  While she does not wish to burn bridges, this is not a company she would ever do work for again.  They have for years and years been treating all their appraisers in the same manner as my daughter.  She was there for twelve years and was the most senior appraiser.  I think the DOL is the way to go.  I'm hoping he is frightened of being assessed for a couple of decades that he did not pay taxes on any of his appraisers, and will pay her the last three commission checks he owes without delay.  Thank you again for your reply.  It will be very valuable in how she pursues this.  I hope you have a happy new year.
clem84
 
Posts: 61
Joined: Fri Apr 01, 2011 2:04 pm


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