Help Wanted: Filing for unpaid back wages

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It can be hard for some employees to It can be hard for some employees to collect back pay if they don't have a salary change in writing. Photo Credit: iStock

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Carrie Mason-Draffen Newsday columnist Carrie Mason Draffen

Mason-Draffen, a business reporter, writes a column about workplace issues.

DEAR CARRIE: Our company recently discovered that an employee in our radiology department has not been paid at the correct rate since he was promoted five years ago. It owes him nearly $51,000. Over the years, he kept insisting he should be paid more because of his new position and added responsibilities. Now the company doesn't want to pay him for the full five years. How many years is it financially liable for this error? -- Big Back Pay

 

DEAR BIG BACK PAY: New York law requires employers to pay hourly employees for all hours worked, and your letter suggests that your colleague is hourly, since you refer to the "correct rate," said employment attorney Domenique Camacho Moran, a partner at Uniondale-based Farrell Fritz

Claims for unpaid wages must be filed within six years of the alleged failure to pay, Camacho Moran said.

I'd like to note that if your colleague is an hourly employee, he may be able to enlist the help of the State Labor Department. But if he is exempt and makes more than $900 a week, then the department wouldn't be empowered to help him on this score. Those exempt employees include workers in the administrative, executive and professional categories.

Short of that, Camacho Moran, who represents employers, indicates what your colleague might be up against in trying to recoup his money.

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For starters, short of having a promise in writing, he has to establish he is entitled to the higher hourly rate.

"As long as [his usual rate] is above the minimum wage and the employee received the overtime premium when he/she worked more than 40 hours in a given workweek," Camacho Moran said, "any claim for additional wages based on the wrong rate of pay will depend on whether the employee can establish a legal right to the wages."

One route might be through a union. "If the rate was set forth in a collective bargaining agreement, the employee may be able to file a grievance with the union," she said.

Regarding a collective bargaining agreement, the time period to recover unpaid wages depends on the statute of limitations in the underlying agreement, she said. Absent a collective bargaining agreement, the employee may have to rely on a breach-of-contract claim, Camacho Moran said. The contract can be written or oral, she noted.

Breach-of-contract claims also must be filed within six years of the alleged breach, she said. If he goes that route, the employee may be able to rely on the pay rate listed in a state-mandated Wage Theft Prevention Act notice that companies must give employees each year.

That notice must include such things as an employee's pay rate. Assuming one was given, your colleague may be able to use it "to establish the contractual promise to pay," she said.

DEAR CARRIE: Our employer says that unless we give a 30- day notice before quitting we forfeit all of our unused vacation time. The policy is spelled out in the manual. Still, can you tell me if it's legal?

-- Long Goodbyes

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DEAR LONG GOODBYES: Your company's vacation policy sounds onerous but legal. Companies that choose to offer benefits can set the terms for them, absent a union contract.

Employers, however, must inform employees of the paid time off policies in advance. It seems your company met that requirement by detailing its policy in the company manual.

It's worth mentioning that because New York is an employment-at-will state, you can quit at any time you want, despite the vacation-pay policy. But short of that month's notice, your employer can also legally cancel your unused vacation time.

For more on the meaning of employment-at-will as well as state law on paid-time off, go to http://bit.ly/vueHQu.

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