Hello, Victor. I'm sorry for your troubles, and I have a mixed bag of
news for you. First, let me say that your instinct is correct, and
your employer has no right to withhold your final paycheck WHETHER OR
NOT you are actually competing against him. Under Oregon law, since
you gave more than 48 hours' notice, he is required to pay your wages
in full on the last day you work. Failure to do so subjects him to a
penalty of up to 30 days' additional wages.
From the Oregon Bureau of Labor and Industries (BOLI):
"If an employee quits with notice of at least 48 hours, the final
check is due on the final day worked, unless the last day falls on a
weekend or holiday. In that case, the check is due on the next
business day. ORS 652.140(2) &(3)
"Civil Penalty for Withholding Final Wages
If an employer willfully fails to pay any part of an employee´s final
wages when due, then, as a penalty, the compensation of the employee
shall continue from the appropriate due date, at the same regular
hourly rate, for eight hours per day, until the wages are paid or
until an action for collection is filed. The maximum penalty is for 30
days compensation. ORS 652.150
http://www.oregon.gov/BOLI/TA/T_FAQ_Tafinpay.shtml
The employer is not permitted to withhold money from the final check,
except for certain very limited exceptions. ORS 652.610 allows:
? Deductions required by law (for example, taxes or garnishments);
? Deductions that are for the employee?s benefit (such as health
insurance premiums) as long as the employee has signed a written
authorization for the deduction;
? Other deductions authorized by the employee in writing as long as
the employer is not the ultimate recipient of the money (charitable
contributions, for example);
? Deductions authorized by a collective bargaining agreement; or
? A deduction from a final paycheck for a cash loan to an employee,
if the employee has voluntarily signed a loan agreement and as long as
the loan was for the employee?s sole benefit. Such a deduction may not
exceed 25% of the employee?s disposable earnings or the amount of
disposable earnings in excess of $170 per week, whichever is less.
http://www.oregon.gov/BOLI/TA/TA_COL_022806_Deductions_From_Final_Pay.pdf
None of those exceptions has anything to do with your situation, so
the employer is forbidden to withhold any monies due to the claim that
you're competing with him.
Now for the bad news. Since your work was performed overseas, the
Bureau itself will NOT process or assist you with your claim. Again,
from the BOLI:
Claims that Aren´t Accepted
BOLI will not accept your wage claim if any of the following is true:
? More than six months have passed since your date of termination and
your claim does not involve minimum wage or overtime.
? More than one year has passed since the date the violation first
occurred and your claim doesn´t involve minimum wage and overtime.
? Your claim is over $10,000 and doesn´t involve minimum wage,
overtime or prevailing wage rate.
? You were self-employed.
? You were paid on a commission basis and received at least minimum
wage for all hours worked.
? You have already begun private legal action to recover the wages claimed.
? You have not yet asked your employer for your wages.
? None of your work was performed in Oregon.
? The claim is against a business in which you were a partner, an
owner or had a direct financial interest.
? The claim is against a close relative.
? The claim is against a person you are unwilling to take to court.
http://www.oregon.gov/BOLI/WHD/W_Whhowinf.shtml
If none of your work was performed in Oregon, BOLI will not accept
your claim and you have to proceed on your own. However, that's not
necessarily all bad. You're worried about paying huge sums to a
lawyer, but you don't have to pay a lawyer AT ALL if you go to small
claims court. And the small claims court limit of $5000 is large
enough to handle your claim.
Information about the Oregon small claims court can be found here:
http://www.osbar.org/public/pamphlets/smallclaims.html
and here:
http://www.consumeraffairs.com/consumerism/small_or.html
Each county has its own court branch, and you should file your claim
in the county where the employer has his business. The filing process
is usually VERY simple and inexpensive. Small claims court matters
are usually heard quickly, and lawyers are not allowed at all except
with the court's permission.
Finally, when it comes time to collect, a commenter below mentioned
that you would be "close to last on the creditors list." I don't
think that's necessarily true. Secured claims get first dibs on their
secured property, but most claims in bankruptcy are unsecured claims,
like vendor invoices and the like. And those unsecured claims take a
back seat to wage claims. 11 USC Section 507(a)(3).
http://www.moranlaw.net/priorities.htm
The code section itself is at:
http://www4.law.cornell.edu/uscode/html/uscode11/usc_sec_11_00000507----000-.html
So it's not all bad news. Best of luck, and if I can provide any
further clarification, please let me know before you rate the answer. |
