Expert: Timmy Chou - 4/17/2009

Question
Hello.

Last year after I finished working for a company, by the company's accountant mistake, I was still getting paid. The total amount I received was $2600.

At the time I received this money I was injured, out of country so I did spend this money on surgery.

I had a verbal agreement with the owner of the company that I will repay this amount and in fact I did repay $1600 already.

Being injured I'm getting disability insurance payments which are pretty small, so it's hard to come up with money to repay my debt.

Today I received a letter from company's lawyer stating that I need to repay the balance or some legal actions will be taken.

Since the owner doesn't want to follow our verbal agreement and contacted his lawyers I want to find out if there is a legal way for him to prove that I owe him money?

There is no any signed paper stating that I confirm my debt.

It's not like I dont want or will not repay the debt, but when a person doesn't want to understand my situation and follow our agreement, then I want to know how this whole situation looks like from legal point of view.

Thank you in advance,
Alex.

Answer
Thank you for your question!

Sorry for the delayed response as the system just notified me today of 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.

I cannot mediate this with you alone but I can respond to your question from my business consulting experience.

Note that this may have legal factors and you may wish to consult an 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.  

I am not a lawyer and cannot give you legal advice and my initial recommendation is to seek some legal advice.  Usually your state's legal aid office or the Bar Association in your area will provide consultation access to lawyers for free.  Go see one.

My hunch is that you have a stronger legal position than you think.  You were overpaid (I assume) outside of your own control and you have made a good faith effort to repay the money.  You have made no promises to pay the money back on any specific term and I would question whether you can be compelled to pay faster when the mistake is not yours.  It could perhaps be proved that you owe the money by using timecards or other means, but you have already more-or-less confirmed the debt by your repayment so far, nevertheless I do not believe this is the legal issue in question here.

Please begin by documenting a very careful chronology of events as they have occurred.  Names, dates and locations.  Put things in writing in a careful chronology.  

Now is the time to send a demand letter by registered mail to the employer, stating your intent to pay on YOUR schedule due to their mistake, and citing the verbal agreement that was made.  You may wish to consider not paying them any more money until you have a written agreement that matches the verbal one, as you may want to defend yourself with the funds if you are sued.  You could request this in your letter.

You should find out what your state law is concerning your situation.  Many states have Employment Commissions or other employment offices where you can get advice and file a complaint for free.  You should contact them right away.  You may also be able to talk with the US Dept of Labor.  Find their offices.

If you have Union, industry or trade advocacy organizations available to you that can assist you try to contact them.  

Be sure to send copies of any demand letters and any other proof or correspondence to all these people when you contact them.  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