AboutTimmy Chou Expertise I am a experienced Mediator and a partner in a management consulting firm. As a mediator I work as a third-party neutral and specialize in partnership/shareholder disputes, management/labor issues, company culture difficulties, and family-owned business problems. I can help describe why alternative dispute resolution may be a good choice for you. As an experienced management consultant I may be able to offer creative ideas to help resolve your organizational and business problems and disputes. "If you say conflict, I say opportunity".
Question Company History
This company has been in the City for 30 years, it is a small family business, father started it, siblings have tried to run it and it has built a questionable reputation within the steel fabrication industry here in the city. Previous fabrication has been of the production type, not structural. Now with the new Production Manager, they are trying to become a Structural Steel Fabrication Shop.
My History as far as Drafting / Detailing is concerned.
Took college classes in Construction Drafting, no degree.
Attended a vocation school for Drafting. It closed down.
1996 – Document Control Manger for Largest Southwest Steel Company
1997 – Became Structural Steel Detailer – Trainee, manual drafting.
2000 – Migrated to AutoCad Drafting, now drawing misc. products. Rebar, Custom Wood, Aluminum Windows, Remodels and Structural Steel Detailing misc. steel.
2005 – Trained and Detailed with Tekla. 3D modeling program for Structural Steel.
Approx. 10 years detailing.
May 2008 (Approx)
Excepted the position as Structural Steel Detailer. Interviewed with the, Production Manager. He became my immediate Supervisor.
At this time no application for employment had been filled out. No confidentiality agreement, just the usual W2 and Citizenship forms.
June 2008 (Approx)
By mutual verbal agreement, I started to work at home and we ( the owner and I) agreed that I would get paid bi-weekly on the day the rest of the company was paid. The Thursday prior to the Friday payday I would submit and invoice for the prior 2 weeks and a timesheet, Friday a check would be cut for me.
Still at this time no contract, no agreement, no confidentiality agreement, just the 1099.
September 2008 (Approx)
I attended a meeting with the General Contractor for a City Project. The GC requested to meet the key personnel assigned to the project. I went as the detailer for the project on behalf of the fabricator. It was expressed to me by the GC that it was important to have an in-house detailer in order to resolve any issues that may occur immediately. I was questioned about the type of products I had detailed, I was ideal in the respect that I have detailed Miscellaneous Steel. I was given two representatives cards from the GC as contacts. We all went to lunch.
During this time I am working on multiple projects (up to 5 during a 2 week period) for this company. Due to their inexperience with structural steel, they had hired questionable detailers and I ended up fixing those projects, plus working on projects of my own. I had to create an excel spreadsheet just to track my hours. I was paid as agreed upon. I was assured by the production manager that I still had plenty of time before starting the City Project.
October 09, 2008
I started detailing work on the City Project, I am now behind schedule. I am still bouncing back and forth from unfinished projects.
The GC is pressuring the fabricator for drawings, I am working weekends to get drawings done on weekdays for partial submittals.
December 2008 (Approx)
The Production Manager and I had a conflict with chain of command procedures we had agreed upon for previous project. It was then agreed upon by the owner, the production mgr. and myself that I would deal with the owner from now on. The owner indicated she was tired of his performance also. But there is a lot of deceit, lies, and manipulation that goes on within this company and I suspected I was being pacified.
December 18, 2008
This is the pay period where the signs of financial problems became clear. I got paid a week later. 12/23/08.
Every payday after that became a mouse and cat game. I would call her cell, call the office, leave a message, text message and finally email her for payment. No response at time, unless I went down to the office and caught her.
Sent: Tue 2/10/09 7:28 PM
To:
Hello,
02/06/09 Friday
Appoximately 3 pm I sent over drawing One, Release to Fabrication, along with notations on the Transmittal.
I briefly spoke with you on the phone, approximately at 5 pm, about obtaining the remainder moniesdue to me for Invoice 012909_3235-08_#07, for the amount of $400.00. You stated you were expecting a check to come in on Tuesday. 02/10/09.
02/09/09 Monday
I called the office approximately 10am and left a message for you, asking if you knew when the Approvals for
Drawing 6,9, E3 and E10 would be coming in.
02/10/09 Tuesday
I have called twice to your cell phone and once to the Moreno office, and still no response.
So I am sending this email to let you know I am here waiting to hear from you.
I will have another invoice coming for the Design Change Rev 1 and the Redline changes that I estimated at 16 hours for the 02/13/09 paydate. (Reference the comments on Invoice #07).
Well I hope business is getting better and I would really appreciate a courtesy call
to let me know where I stand on getting paid.
Darla
From: DARLA Sent: Tuesday, February 17, 2009 4:13 PM
To: Fabricator, Production Manager, General Contractor
Subject: Darla _Past Due Invoices_3235-08
Hello Owner,
Please find attached copies of my past due invoices.
Today I left you a voice mail and left a message with Jimmy indicating that I would not release the revised drawings until I received monies owed to me.
I have called your cell phone, called the office, text messaged and emailed you about getting paid and do not receive a response. I have to go to the shop and have a family member call you in order to talk to you. I realize you are busy, but someone at “fabricator” needs to acknowledge me, if not for the drawings, at least the money due to me.
I was paid $200.00 on 01/30/09, I am in real trouble with my bills, you said you were expecting a check on 02/09/09, still I cannot get a hold of you.
For the last 6 months we have an arrangement of a bi-weekly payments, I have and am continuing to work on the revisions and supplying additional drawings for Burn Building A.
The only contact in regards to the drawings has been from “Production Manager” letting me know there was a mistake in the BOM. That was by email and 2 weeks ago. I received full size copies of the Approvals on (2/11/09) 2 weeks after being received by Moreno (1/23/09). I did receive the Approval email one week later on 01/29/09. There seems to be no concern over these drawings.
I am gonna finish up these drawings, even the elevations, I did not initially detail those because I didn't think you would pay me for them, but they are needed for Erection / Placement purposes.
I will send an invoice as I usually do, and I am filing a complaint with the Arizona Registrar of Contractors as another resource to collect my money.
You told me “Fabricator” lost Burn Bldg "B", I was really looking forward to working on that one, Building "A" was an exercise. But I put alot of work into Building A and Building B would have been a real good job to do, I think “another detailer” and myself were looking forward to work on that project.
Production manager told “my husband” he was working on Building B, so I seem to be out of the loop.
Sorry if this causes you any hard feelings, but it seems like you are trying to get rid of me anyway, all I tried to do was a good job, hopefully your new Management Company will help Fabricator.
Darla
February 17, 2009
RE: Darla _Past Due Invoices_3235
From:
Sent: Tue 2/17/09 5:07 PM
To: DARLA
Darla I just open this up and surprised at what I am reading. First you where made aware on January 30th that all invoicing was to be paid when paid. We have not received payment for this project. I am really upset that you feel that you need to cc FCI on this. By cc: FCI not only do you make yourself look bad this is not going to make them pay you any sooner. I did also mention that I was not going to be available due to my production management team and that all question and concerns would go through Ken. This is company policy and you will follow it.
As per your quote: “I am gonna finish up these drawings, even the elevations, I did not initially detail those because I didn't think you would pay me for them, but they are needed for Erection / Placement purposes”. I am instructing you to cease and desist any and all detailing, your service are no longer being required. Your invoice will be paid when we receive payment. Also as for your threat on ROC this will be ok with me due to you will not have case. In the event that this case is entertained by the ROC, Moreno Welding will be entitled to attorney’s fees and damages.
Please adhere to the standard bounds of construction protocol regarding the chain of command and communications and direct any correspondence to Moreno, and only Moreno. Anything else is unwelcome and a contractual violation, you are not an employee of Moreno Welding and are not authorized to contact any client, any future correspondence or communication with clients after this will be forwarded to our attorney for evaluation as possible libel, in the event that your correspondence causes Moreno Welding to suffer financial loss, we will likely have a meritorious case.
There were other emails by myself and the Production Manager, but I believe because my last invoice was attached with a copy of my last check stub for $200.00, the complaint, and copying the General Contractor, got their attention.
Notice the change in language. The production manager is notorious for being an intellectual bully. He likes putting down people and scaring them because he use to be a Contractor. His license is currently revoked in Arizona. That is him speaking, the owner is not versed in that manner.
February 17, 2009
My attempt to resolve the situation.
RE: Darla _Past Due Invoices_3235
From:
Sent: Wed 2/18/09 5:44 PM
To:
Owner,
This is an attempt to resolve this issue between the two of us.
I never meant filing a complaint as a threat or for this whole situation to become this explosive. I see a lot of Production Manager’s verbiage below and hope he is not negatively influencing you because of some resentment he has towards me.
As I mentioned before, filing the complaint was my only means of assuring the I would get paid. I called and still could not get a hold of you. I don't have the means for placing a lien on the job and you had been consistently paying me bi-weekly. On Friday the 13th when I spoke to you, you lead me to believe I would get paid this week by your new Management Team. You said you would call me Monday because "Mike" from the Management Team wanted to speak with me and that I should tell him everything that was going on at Moreno. To date no one contacted me.
Then when I could not get a hold of you or get a response of any kind, I felt the complaint was my only option to get paid.
Then within 45 minutes I am fired for trying to get paid.
I was expecting you to tell me, that a complaint would not be necessary, that I had not been forgotten and that you would give me an estimated time to get paid.
The "Elevation" drawings I mentioned before are not necessary, they were just extra drawings I was working on to aid Fabricator. You have a working package, you just need the revisions.
I don't want to end this job in this manner. I would like this job to move as smoothly as possible, that is why I became concerned about not being contacted by “fabricator” about these drawings.
Well I hope you will respond and let me know how we stand.
Darla
The red highlighted part was just spiteful talk, I shouldn’t have said that, those drawings are done, but they do need the revisions.
I was a little angry.
February 19, 2009
021909_3235
From: Darla
Sent: Thu 2/19/09 3:48 PM
To: Owner
Monica,
Please find attached current revisions to drawing one.
These revisions had been made prior to my discharge from the project.
The changes apply to the Scuppers.
Transmitted for your use.
Darla
Two days later I sent drawing one, because the scuppers should be in fabrication, and I missed that revision through all the drama. And although everyone, mainly family tells me to keep the drawings, that is not the subject at hand, getting paid as I should is the problem.
February 22, 2009
My last invoice should have been sent on the 12, but I did not send it. I plan to send it Monday, it is for work done prior to the discharge. My concern is that they do not have the drawings needed to fabricate, there are significant changes, with the final invoice, the total due is $1200.
Where do I go from here?
Any advice you can give will be greatly appreciated.
Thank you for your time.
Sincerely Darla
Answer Thank you for your question!
As I always note to questioners, mediators act as neutral third parties to disputes and never "get involved" in judging the merits of conflict, but merely use special techniques to help the parties decide how to negotiate their own settlement.
The case you describe here is very typical and can be considered a "classic" dispute presentation. I am not an attorney and cannot give you legal advice nor can I mediate this with you alone, but I can respond to your question from my business consulting experience.
Note that this matter may have legal considerations and you may wish to consult a attorney.
I often tell people that it may be useful to consider that right and wrong are not always the most useful places to begin in dealing with these sorts of problems. For most large organizations there is only expedient and inexpedient. Also, there is a cost to exacting justice and the costs can be quite high. Remember that your person-hood and your work are not even remotely related and that the most successful people at work are often the least successful with others since they have often become successful on the bodies of those they have slain.
You are dealing with authority figures or owners who are only interested in the path of least resistance in terms of how they manage the business. I'm guessing they could care less about you so don't put too much investment in your position. You are being handled in this unfair manner for business reasons and now you must create a business reason to deal fairly with you.
I am sure you will not mind a bit of scolding for not formalizing your relationship with the company. Either as an employee or as a contractor the lack of written agreements concerning your relationship, compensation and qualifying performance "deliverables" only opens you up to being positioned as the bad guy without any resources to sustain a fight should there be one. At this point, though you have a minimum legal ORAL business relationship, it is a "he said, she said" problem if a fight ensues.
I think that unless you can figure out a way to personally meet with the owner and restore your relationship, your future options here are likely to be limited and so I would urge you to just try to get what is due you and move on.
Please begin by documenting a very careful chronology of events as they have occurred. Names, dates and locations. Put things in writing at this point as you have done in this e-mail. In most states you can be fired for just about any reason without a problem. These are known as "right to work" states. However, you cannot be treated differently than other workers nor can your contract be violated.
I think your strongest play may be asserting that you are REALLY an employee all along and should have been treated as an employee. There is a very long relationship "test" you can get from the Department of Labor website that can help you determine if you are an employee or not. Things like: you must have your own business or license, you must be allowed to work at your own pace, you must do the same work for many others, etc. are all examples of rules that apply only to contractors. If you can make the case that you are really an employee, you can then file complaints with State and Federal employment offices.
Many states have Employment Commissions or other employment offices where you can file a complaint for free. You should contact them right away and file a complaint. You may also be able to file a complaint with the US Dept of Labor. Find their offices and see what they say about your relationship with this company.
In the end, your company must see that it will cost a lot more to deal with all the problems you will cause them for their practices and then they will make a business decision and settle fairly with you.
These are some ideas. Feel free to follow up with additional questions.
For your information, the pros and cons of the types of dispute resolution methods follows.
GOOD LUCK!
Arbitration, Mediation, and Litigation
Arbitration: the referral of a dispute to one or more impartial persons for final and binding determination outside of the judicial system
Benefits of Arbitration:
Confidential, no public record
Limited exchange of documentation, information
Quick, don't have to wait for a court date
Arbitrators have expertise in the subject matter and are trained in conflict resolution
Cheaper than litigation
Preserves business relationships
Negatives of Arbitration
It's a compromise, no 100% winner
Complex arbitration can be costly
If not satisfied, may litigate the arbitration procedure
Poor results with an unskilled arbitrator
Both parties must agree to cooperate in the process
Mediation: the process by which parties submit their dispute to a neutral third party (the mediator) who works with the parties to reach a settlement of their dispute.
Benefits of Mediation:
Neutral mediator can objectively suggest alternatives not considered before
Parties are directly engaged in negotiating the settlement
Can be quicker than litigation
Less costly than litigation
Preserves business relationships
85% of American Arbitration Association cases mediated find successful solutions
Negatives of Mediation
may not reach a binding decision
unskilled mediator
Litigation: using the judicial system to resolve disputes
Benefits of litigation:
a clear winner and loser
uses a prescribed set of procedures
more predictable outcomes
is final
Negatives of Litigation:
waiting for court dates can do more harm
usually more expensive than mediation and arbitration
part of the public record
