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Avoid Big Traps
Pay & Benefits
Wage, Bonus, Commission and Benefit problems
Things to consider if your employer is not paying you properly
Let’s assume the employer’s motive is not some form of Discrimination or Retaliation, and that he is not trying to force you to quit (which we call Constructive Discharge). Assume you do not have a written employment Contract, and do not have a Non-Compete Agreement, and you have not been given a Separation-Severance-Waiver-of-rights Agreement upon being terminated. No other problems are occurring, in our assumption, and the law of Wrongful Termination will not be playing any role in our analysis.
But if any of the above circumstances might apply to you, then your problem potentially goes way beyond mere unpaid wages, bonuses, commissions or benefits, and you should consider seeing a lawyer right away. FYI: Problems with payments and benefits are sometimes part of a pattern of unfair treatment, such as I talk about in my Hostile Environment and Constructive-Discharge articles. The pattern may or may not give you rights, but it’s suspect and needs to be explored.
Regarding Benefit Problems – LIMITATIONS OF THIS ARTICLE
For Benefit Problems, a key distinction is between “ERISA Benefits” and “Non-ERISA Benefits”. For more information about ERISA, see my brief article called Benefit Summary: ERISA, HIPAA, COBRA, MO Continuation. ERISA benefits are the big benefits, such as health plans and pension plans, of companies that meet the complicated standards for being large enough for ERISA to apply to them.
But most miscellaneous benefits are not going to be official ERISA plans, and disputes about those benefits do not trigger any special rights under the ERISA laws.
NOTE THIS MAJOR LIMITATION: I do not cover insurance or health plan benefit payment problems at all in this article, such as the carrier not paying your claims or denying coverage. I do not want to discuss coverage issues in this article – that’s too complex a topic.
Missouri law is very, very deficient about pay and benefit disputes
I talk more about the lack of protections in Missouri for resolving wage and benefit problems in my article listing many of the employment law deficiencies affecting Missouri residents, which I call The Sorry State of our employment protections. Generally, if the employer cheats you out of some of your pay and Non-ERISA benefits, you’ll probably end up in small claims court unless the amount is high enough to pay a decent contingency fee if you win. But read on, and don’t jump to conclusions just yet. There is some hope.
Here are simple payment and benefit problems where the info in this article may help:
If you are being cheated out of commissions, look to two sources for special rights — First, look to your Employment Contract for special rights, if any. Second, look to the Merchandising Practices Act, and I talk a little bit about this in my article on Unpaid Commissions.
Simple benefit disputes:
Here’s the most common type of Non-ERISA benefit problem I get calls about: Unpaid vacation and sick pay. I wrote a short article about the problem, Vacation and Sick Pay.
I also get calls about disputes surrounding miscelleous things like: Moving allowances, tuition reimbursement, expense report reconciliation, car allowances, cell phone bills, cash-in-lieu-of-some-benefit.
Simple underpaid wages, salary, tips, bonuses, commissions:
Read on if you are being cheated out of hourly or weekly wages or salary (including tips), or bonuses, or commissions, or miscellaneous benefits. Remember: if you have an Employment Contract you may have special rights.
BUT: Watch out for unpaid overtime or unpaid final wages:
Here are the most common reasons for disputes about payment of some of your wages, bonuses or commissions or non-ERISA benefits:
Dealing with common simple payment or benefit disputes:
Missouri law is deficient
There is no provision in Missouri law for imposing any kind of penalty on the employer for not paying a part of your ordinary wages, as long as he is actually giving you at least enough to equal the minimum wage. Even if you take him to court and win, all he’ll owe you is the amount of the wages. He won’t even have to pay any attorney fees you incurred in beating him. If he is cheating you out of a significant amount of money it might be worthwhile to sue. Call a lawyer. See my contracts article for more information, because an action for underpaid wages is a contracts case.
Please consider calling or writing your Missouri State Representative or State Senator and tell them if you think Missouri should have a Wage Payment and Collection Act to help fix the problem of employers cheating employees out of their pay. Find out the name and address of your Missouri state senator, and Find out the name and address of your Missouri state representative here. FYI: Illinois has a very nice law, called the Illinois Wage Payment and Collection Act which gives you a special right to sue when the employer cheats you out of your pay or benefits. You can win damages and attorney fees in Illinois for this kind of misconduct by employers, but Missouri law doesn’t seem to care.
Remember: If you got fired or layed off, and the employer failed to hand you your final pay on the spot, he violated the law and you can trigger a penalty. See my Unpaid Final Wages article for more details.
See also The Sorry State of our employment protections for more about the lack of protections for employees cheated out of pay and Non-ERISA benefits.
Article written by | Tim Willoughby
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Timslaw.com Missouri Employment Law
Maintained by Attorney Phil Willoughby
Phil is a Missouri employment lawyer who is licensed to practice in Kansas and Missouri, and primarily takes cases in Saint Louis and Kansas City. He is a member of the Missouri Bar Association and Kansas Bar Association. Additionally, he has practiced in the United States Federal Courts of Missouri in St. Louis and Kansas City. He has also practiced in the Kansas Federal District Court in Kansas City, Kansas.
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Phil Willoughby, Attorney
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