Legal Question in Employment Law in New York
employment agreement
I signed an employment contract that stated I would be paid by commission at varied rates for carpet/flood cleaning. the contract stated that I would be eligible for benefits, such as a 401k. I was fired for telling the owners brother to f himself when he wanted me to do a job in which I would not make money. I have not been paid in accordance with the contract and even quit on one occassion due to being paid less. I was suppose to be paid 18% of out going tickets but was not paid for setting up drying equipment in which the employer recieved 3 day min. rental on and a loss of hundereds in comm. to me. Moreover, I learned that the 401k did not exist. I also have been backcharged for jobs I did w/out given the oppt to correct the job. Do I have any standing to sue for non paid comm or backcharges? On other occassions I have been paid an unagreed hour wage. I have complained, quit, and now fired about my pay. I was told if I did not deliver/pu rugs and euipment at $10 per rug and $2 per equip. I would be fired. Also. my complaints about unsafe conditons, i.e. asbestos/mold removal were dismissed.
the boss's brother has been verbally abusive and the gm said he was not my boss but I was fired for insorbination,and given less work.
2 Answers from Attorneys
Re: employment agreement
You need to have a lawyer review your documents and advise if you have a case.
If you are a salesman and are not paid according to your contract you definately have a case and may recover triple damages.
If you are an employee who cleans carpets with a written contract, that contract needs a full review. If the contract allows chargebacks, you may be responsible if contract does not give you the right to correct the job. However the amount you are paid has to meet the minimum wage/overtime laws. A review of the contract should reveal what portion of tickets and deliveries are payable to you.
Regarding the 401k, more investigation is needed as employees must elect to contribute to the 401k. If this offer is never fullfilled for any employee the owners may be liable for their misrepresentations.
Re: employment agreement
You have standing to sue and you also can file a claim with the NYS Dept. of labor for unpaid wages and backcharges as well as wage supplemets.
However, depending on how long you were employed and what type of 401k they promised and the terms of the contract, you might also have a federal ERISA claim.
I would need to actually see the contract. But as to earned wages and supplements and comissions
the Department of Labor can handle it for you.
It sounds like a potential retaliatory discharge claim. While the Dept. of Labor will handle this also, you would be better off with an attorney to navigate this complex area.
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