[Tiggilee]

My employer has refused to pay me my final paycheck (for period of Nov 3 - Nov 17, 2006.) I filed a case through the Employment Security Commission (ESC) and it was decided in my favor, but the ESC decided 'not to pursue it' and advised me to pursue it through small claims court.

I filed a small claims suit, and my employer showed up in court with a document showing he paid me. The magistrate said this proved nothing, and asked if he could produce a cancelled check, and he said he could not, that it was done through a payroll company. The magistrate said my employer should still be able to produce a cancelled check, but then ended the proceedings by saying she would keep and review the paperwork and notify us of her decision. (I provided all of my paystubs for that year, the last one being for pay period ending 11/2/06.)

I received the decision today, and it states “Court has reviewed documents and testimony of parties. Much of the compensation agreement was verbal and parties have very different testimony as to whether money is owed. It may be that plaintiff is owed money, but the documentation and testimony provided simply do not sustain plaintiff’s ‘burden of proof’ and the court will not speculate.” :mad:

I plan to pursue the appeals process. Must file by 8/24/07. My question to you is, how can I prove a negative? How can I prove I did not get paid? Do I have a right to the cancelled check (which does not exist)? How can I prove my case when I cannot get access to the documents that can prove it, and the court will not ‘speculate’ enough to mandate that the documents be provided?

To further complicate things, I noticed that my W2 does not match the amount on my final paycheck. It is off by an amount that is nowhere near the amount owed to me ($500 more on W2 vs. $1700 that is owed.) It appears I even paid taxes on money that I did not receive! I am checking with my tax accountant on this part of the matter, but would still appreciate any insight on this part too.

Thank you,
Charlotte, NC

[excon]

How can I prove I did not get paid?

Hello Tig:

You can't, so the defendant has to prove he DID pay you. Apparently, what they provided was enough for the judge to rule for them. I think the judge was wrong.

However, I don't think the appeals court will overrule him. Appeals are based on abuses or rulings that are contrary to law. The judge made none of those types of rulings. Therefore, I don't think your grounds that the judge came to the wrong conclusion is appealable.

excon

[ScottGem]

How did you get paid normally? By check? Direct Deposit? Cash? How were you paid, hourly, salaried?

Did the payroll company produce any documentation that the last pay was issued?

I agree that its up to the company to provider some proof that the pay was at least issued. But I also agree with excon that the appeals process amy not help you.

[Tiggilee]

I was paid salary, every 2 weeks. The check was mailed to my employer, who gave it to me in person. When I showed up to collect my last paycheck, he said "I am not paying you for your last 2 weeks." Basically, I think he received my paycheck, stuck it in his desk, and that was that. What he is providing now is proof that a check was issued. How can I prove I never got it, and it was never cashed? Only he has the proof of that, and he is not providing it. Aren't there 'discovery' laws for such things? Isn't he required to provide certain documentation if I ask for is specifically?

My next moves:
A) Contact payroll company, try to find out what I can about the non-existent check. I have the likely check number (they were sequential, so I can just add 1 to the last check I DID receive.)
B) Contact a tax accountant about the fact that I was taxed on money I was never paid. That is Fraud, right?
C) Collect all bank statements since that time. Can at least show no check was deposited.

I also received the following legal advice from a free 'ask a lawyer' service. Can't quite interpret it.. much legalese... going to run it by my friend who is about to take the bar..
File your appeal, and be sure it is timely. Because you are pro se, I think you have to ask the court, or the judge, to issue a subpoena to the payroll company to give you the cancelled check in question. You might have to notice a deposition and do a subpoena duces tecum. Then, show up for the deposition and tell them you just need the records. This could get messed up so you need to make sure you have a lawyer look at what you are doing.
Once you are in District Court you have access to records through the discovery rules - see the NC Rules of Civil Procedure - rules 26 - 3. You can get what you want.
There are some tricky things the company might do to frustrate your efforts, but follow the rules and go see a lawyer in Charlotte to get some help by the hour to show you the ropes. You can prevail. It'll just be a bit of a hassle.

[excon]

Hello again, Tig:

Filing your appeal is only a request for a new hearing... It has to be granted before you can get a hearing. In order for it to be granted, you have to show error or abuse of process. As I suggested earlier, you can't show that the judge made any error or abused the process. All you can show is that you disagree with his conclusion of fact. I don't think that's going to get you anywhere.

But, let me know. Stranger things have happened in court than that.

excon

[ScottGem]

First you can't add 1 to your last check #. I'm sure the payroll co issued several checks on the company account so your check might not be the next in sequence.

However, you should have been entitled to a copy of the cancelled check or a statement from the bank that it wasn't cashed. You don't have to go to the payroll company for this if you have the name of the bank and the account #, but you may need a court order to get it. But that also may give you your grounds for appeal. The check or a statement should have been bought into evidence. If it wasn't that could be the procedural error you need.

The W-2 is another issue. That should have been issued by the payroll company. If it was not correct the IRS will go after them. So you can threaten to report this to the IRS.

[Tiggilee]

Thank you again for your replies. Actually, in this case I think I can add 1 to the check number. All of my other checks are sequential in number (N + 1) and I was the only employee on payroll at the time.

I don't have the account number, just the bank name. But I think the fact that the judge said that the proof provided by my employer was insufficient, and that he should have access to and should have provided a cancelled check, and then ruled that she 'would not speculate' is grounds for negligence in court. The evidence is there, she said it was there, she chose not to get it. She would not HAVE to speculate if she had that check. I think it was just plain laziness on her part. I am definitely going to fight this.

[ScottGem]

The bank may not help without the account number, but go for it.