Unfairly Exploited by Boss: Best way to transfer/Quit Amicably?

KirStang · Mar 17, 2012

All,

In a big of a predicament here. Started as an unpaid intern, but in order to incentivize me to stay, the Boss promised he'd give me a quarter (1/4th) of whatever I billed for the firm, starting this past January. Naturally, given the poor job market, I saw an opportunity and went for it.

I had a good month January, billed thousands of dollars and made a nice paycheck. Since I've worked my ass off in the past 7 years, and since my car was near-death, I went ahead and started a lease on a new car.

Problem is: Boss has a dozen properties and a half-dozen cars. He's way over-leveraged and pulls money out of the firm like no tomorrow. As of today, March 17, 2012, I have yet to see my February paycheck. I likely will not even see a check until after the 20th or March (nearly 3 weeks in to the Month. Last time I got my January paycheck on the 10th of February). He recently got hit with an IRS Bill for $20,000 and everytime I approach him about money he acts as if he's really hurting for money.

Which I know is not entirely true.

For the Month of March I know for a fact the firm has already made $20,000+. This weekend, he's deciding to go on a Trip to NYC with a secretary under the auspice of "visiting a client."

I'm pretty steamed that he would try to exploit his attorneys like this, and avoid paying them for as long as he can. He even tried to be slick and stated he would "place me on the payroll" (but starting March 19th) so I would miss 19 days of pay.

A little background about the firm: The boss has 20+ years of experience, but is very lazy. He gets as much money from clients as he can upfront, then does some frivolous work (a call here, a letter there, a motion to compel document here, or maybe some request for a tape) and bills out all the money, then withdraws before the heavy lifting (i.e. trial, motions to suppress). I've yet to see him read any discovery that comes in, and I've literally seen him take a $7,500 retainer and blow it on phone calls (that went nowhere).

The firm is in complete disarray. I've been doing a lot of work to straighten out mismanaged cases, i.e. serving the wrong party, lack of discovery, lack of negotiations with prosecutors, and I've had a good amount of success in resolving cases that should have been resolved a long time ago. To be honest, I feel like I'm actually the lawyer of the firm, even though the boss has his name on the door--and client's have taken notice. Most are coming to the realization that he doesn't really do any work.

The firm's employment structure is such that he hires interns for no pay, promises the world, exploits them, then lets them leave. The average duration of employment is less than 2 months. This is illogical since every new intern has to be trained, and wastes significant man-hours teaching them how to do simple motions.

I've started submitting job applications to other firms, and I have a job interview lined up this Tuesday. I'd like to stop getting exploited, and I'm wondering the best way to sever things and move on.

1.) Be a complete dick, and just stop showing up. It's unprofessional and I don't think I should.
2.) Give him, in written notice, 48 hours to come up with a paycheck or threaten to leave.
3.) Talk to him, start reducing my hours and put him on notice i'm leaving.
4.) Don't tell him squat, avoid doing serious work, and only tell him I'm leaving when I find a new job.

I think I'd like to leave amicably, but he seems to have no issues with exploiting people. Bottom Line: I want my pay for February and March, and I'd like to do so without resolving to sue him for it, and without burning bridges (as tempting as it is). I also want to avoid any further exploitation.

Craven Morehead · Mar 17, 2012

4

I doubt you will see a cent from what is due. Your boss is an ass. I doubt if he will change no matter what you say to him.

Get another job ASAP

Good luck.

martian · Mar 17, 2012

Uh, here's a crazy thought: can you sue him for the back pay? Give him a reasonable timeframe to come up with what he owes you, and if he doesn't, leverage all that fancy schooling you went through to force the issue. I know absolutely nothing about lawyering so I don't know if this is practical, but if the guy is as much of a disaster as your post seems to indicate it seems like it might be an option.

Most of this is kind of a world apart from me. I've never had anything to do with an internship, and I don't know what the expected protocol is when interns depart. Are you expected to give two weeks notice before leaving? Is there an employment contract of some sort that spells out your obligations?

Whatever you do, I wouldn't give notice until you've got another offer lined up. I've yet to hear of a company that took issue with delaying a start date so that a new employee can finish up at an old job properly; the general wisdom that I've heard is that employers like that, because it's an indication that you're generally a fair dealer. That said, it's entirely possible that things work differently in lawyerland, in which case just follow whatever the normal protocol is.

You don't really owe this guy anything. Respect is earned, not granted automatically, and he's treated you pretty poorly so far. I understand your desire to keep things kosher and would probably want to do the same thing in your position, but the bottom line is that you need to look out for your own interests first. If that means departing abruptly, so be it.

The thought also crossed my mind that if you're building a rapport with the clientbase you could go off and start your own practice. Something tells me that's not particularly feasible for an intern to do though, and you'd have to be wary of anything resembling a non-compete clause in your employment contract.

genuinemommy · Mar 17, 2012

That is a crooked person. You need to give your boss 2 weeks notice, and move on. I would normally suggest to find another job before leaving a current position, but there's not much of a chance that your boss will pay you for your work, so why bother working?

Maybe if you're lucky the guy will try to convince you to stay, once he realizes you're not going to put up with slavery.

Freetofly · Mar 17, 2012

I think 4 would be feasible, not knowing the job market where you are located.

Exploited: to use SELFISHLY for one's ends: employers who exploit their workers are douch bags!

I'm sure he has done this before and knows what he can get away with young interns.

cynthetiq · Mar 18, 2012

Question: Are you an independent contractor or an actual employee of the firm? Does he withhold taxes? If you are an employee, his not paying you the billed hours, he has in fact, de facto fired you. You can walk up to him and let him know that if he does not pay you he has in fact by not paying you laid you off. You are entitled then entitled to all state and federal unemployment programs.

If you are an independent contractor which I believe this to be the case, you are to stop billing hours to him, but bill them to yourself. Let the people know that the billable hours will now be invoiced by you directly and you expect them to pay you directly.

Interns are very, very specific as to the work they are supposed to be allowed to do. People exploit interns all the time. If he is not following the guidelines below he is in violation of the standards put forth by the Department of Labor.

Fact Sheet #71: Internship Programs Under The Fair Labor Standards Act
This fact sheet provides general information to help determine whether interns must be paid the minimum wage and overtime under the Fair Labor Standards Act for the services that they provide to “for-profit” private sector employers.

Background
The Fair Labor Standards Act (FLSA) defines the term “employ” very broadly as including to “suffer or permit to work.” Covered and non-exempt individuals who are “suffered or permitted” to work must be compensated under the law for the services they perform for an employer. Internships in the “for-profit” private sector will most often be viewed as employment, unless the test described below relating to trainees is met. Interns in the “for-profit” private sector who qualify as employees rather than trainees typically must be paid at least the minimum wage and overtime compensation for hours worked over forty in a workweek.*

The Test For Unpaid Interns
There are some circumstances under which individuals who participate in “for-profit” private sector internships or training programs may do so without compensation. The Supreme Court has held that the term "suffer or permit to work" cannot be interpreted so as to make a person whose work serves only his or her own interest an employee of another who provides aid or instruction. This may apply to interns who receive training for their own educational benefit if the training meets certain criteria. The determination of whether an internship or training program meets this exclusion depends upon all of the facts and circumstances of each such program.
The following six criteria must be applied when making this determination:

The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;

The internship experience is for the benefit of the intern;

The intern does not displace regular employees, but works under close supervision of existing staff;

The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;

The intern is not necessarily entitled to a job at the conclusion of the internship; and

The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

If all of the factors listed above are met, an employment relationship does not exist under the FLSA, and the Act’s minimum wage and overtime provisions do not apply to the intern. This exclusion from the definition of employment is necessarily quite narrow because the FLSA’s definition of “employ” is very broad. Some of the most commonly discussed factors for “for-profit” private sector internship programs are considered below.

Similar To An Education Environment And The Primary Beneficiary Of The Activity
In general, the more an internship program is structured around a classroom or academic experience as opposed to the employer’s actual operations, the more likely the internship will be viewed as an extension of the individual’s educational experience (this often occurs where a college or university exercises oversight over the internship program and provides educational credit). The more the internship provides the individual with skills that can be used in multiple employment settings, as opposed to skills particular to one employer’s operation, the more likely the intern would be viewed as receiving training. Under these circumstances the intern does not perform the routine work of the business on a regular and recurring basis, and the business is not dependent upon the work of the intern. On the other hand, if the interns are engaged in the operations of the employer or are performing productive work (for example, filing, performing other clerical work, or assisting customers), then the fact that they may be receiving some benefits in the form of a new skill or improved work habits will not exclude them from the FLSA’s minimum wage and overtime requirements because the employer benefits from the interns’ work.

Displacement And Supervision Issues
If an employer uses interns as substitutes for regular workers or to augment its existing workforce during specific time periods, these interns should be paid at least the minimum wage and overtime compensation for hours worked over forty in a workweek. If the employer would have hired additional employees or required existing staff to work additional hours had the interns not performed the work, then the interns will be viewed as employees and entitled compensation under the FLSA. Conversely, if the employer is providing job shadowing opportunities that allow an intern to learn certain functions under the close and constant supervision of regular employees, but the intern performs no or minimal work, the activity is more likely to be viewed as a bona fide education experience. On the other hand, if the intern receives the same level of supervision as the employer’s regular workforce, this would suggest an employment relationship, rather than training.

Job Entitlement
The internship should be of a fixed duration, established prior to the outset of the internship. Further, unpaid internships generally should not be used by the employer as a trial period for individuals seeking employment at the conclusion of the internship period. If an intern is placed with the employer for a trial period with the expectation that he or she will then be hired on a permanent basis, that individual generally would be considered an employee under the FLSA.
Where to Obtain Additional Information

This publication is for general information and is not to be considered in the same light as official statements of position contained in the regulations.
For additional information, visit our Wage and Hour Division Website: http://www.wagehour.dol.gov and/or call our toll-free information and helpline, available 8 a.m. to 5 p.m. in your time zone, 1-866-4USWAGE (1-866-487-9243).

*

The FLSA makes a special exception under certain circumstances for individuals who volunteer to perform services for a state or local government agency and for individuals who volunteer for humanitarian purposes for private non-profit food banks. WHD also recognizes an exception for individuals who volunteer their time, freely and without anticipation of compensation for religious, charitable, civic, or humanitarian purposes to non-profit organizations. Unpaid internships in the public sector and for non-profit charitable organizations, where the intern volunteers without expectation of compensation, are generally permissible. WHD is reviewing the need for additional guidance on internships in the public and non-profit sectors.
Click to expand...

KirStang · Mar 18, 2012

Back in October I was made aware that he was not in compliance with labor laws. I was there for the experience so I blew it off.

The direct-pay idea is not bad at all. I do believe I'm an independent contractor. Thanks for that idea, Cyn.

I wonder what's the proper agency to report labor violations. Maybe I'll give the DOL a call to really screw with him.

cynthetiq · Mar 18, 2012

Remember that you should also treat him as a client. If you are doing work that is directly related to his firm, you bill him the hours directly. These are for the incidentals that cannot be billed back directly to a client such as those fucked up things you're fixing.

Craven Morehead · Mar 18, 2012

Have you kept a record of hours?

cynthetiq · Mar 18, 2012

There are two groups interested in his DOL violations. First the Department of Labor and then after that, there is the Internal Revenue Service. If the person fails the intern tests and passes the employee test (instead of using the independent contractor tests) he is also not paying payroll taxes properly and the IRS would be very interested in that. The IRS would also be interested if he is improperly getting loans from his company and not repaying them. All company expenses must past reasonable tests to ensure that he isn't gaining income without paying taxes on that income.

SCBronco · Mar 18, 2012

Bad ass Cyn... Bad ass. That being said Stang, as you are bending him over and squeezing the green stuff out of him, make sure you are doing so professionally courteously, and above all ethically (i know, fine line)... as a lawyer, im sure all of these actions will go a long way with the next firm. you dont wanna seem untrustworthy if another firm calls him for a referal. But, the ability to absolutely fuck the opposition while being applauded by society and the government? that has to be a golden ticket in the field of law right?

rogue49 · Mar 19, 2012

1. Find another job
2. Give resignation
3. Sue for backpay

Do not do confront while at the job, then they remove you "for cause" for whatever reason they can come up with.
And they can come up with tons...then if you do anything after, they can use the "disgruntled" excuse against you.

Go out a professional, be circumspect as to why you are leaving, give some notice.

Key, be very careful when finallizing, do not sign any paperwork...even if it's to get a little pay.
They will use this to cover themselves legally.

Then immediately file for backpay...go through official channels for both State & Fed.
Hopefully you've listed everything in detail. (burden of proof will be on you)
And hopefully you've got some people to note as witnesses. (even voluntary, but I doubt it if they want to save their jobs)

But no matter what...get out of the friggin' thing.
Life is too short.

cynthetiq · Mar 19, 2012

The thing that comes to mind for me is that once you've lit the match for whatever path you're taking, you must be ready to file a civil case, small claims or regular for money owed. You must do it immediately so that your claim is up at the top if he decides to kill the company in any way.

rogue49 · Mar 19, 2012

Oh yeah...get ready for it to take a LONG time.
The system is not setup for speed.

Make sure YOU followup on everything...including your own lawyer, if necessary.
Be your own proponent.
They will delay, delay, delay...and make every argument under the sun.

Take it from me; my wife & I, sued a doc for malpractice.
And that's all he did...just kept extending the thing.

That's why I said get a job first, you'll want to be out of there...and you'll want some income inbetween...even if you win outright.

Zen · Mar 19, 2012

SCBronco said: ↑

Bad ass Cyn... Bad ass. That being said Stang, as you are bending him over and squeezing the green stuff out of him, make sure you are doing so professionally courteously, and above all ethically (i know, fine line)... as a lawyer, im sure all of these actions will go a long way with the next firm. you dont wanna seem untrustworthy if another firm calls him for a referal. But, the ability to absolutely fuck the opposition while being applauded by society and the government? that has to be a golden ticket in the field of law right?
Click to expand...

I agree. Take pleasure in your strict adherence to courtesy and ethics. Then, at any point your position might feel or be made to feel shakey, you'll know that it isn't.

KirStang ... Question: have you witnessed him ever get challenged or backed up against a wall? You've got clear info on how he exploits. Can you get info on how he maintains that? Then you could predict his likely responses as you determine strategy.

EventHorizon · Mar 19, 2012

[plot of Office Space]

SirLance · Mar 19, 2012

4. No question.

Snake Eater · Mar 19, 2012

I would lean towards option 4 with regard to your future options.

However, if I were in your shoes, I would also do almost anything to avoid letting him win/get away with cheating me.

You seem to be an attorney, so what is preventing you from suing the crap out of him and wasting more of hit time than your paycheck was worth? You may not get your money back, but you will have stuck it to the man and can at least walk away feeling vindicated.

Who knows, maybe the threat will encourage him to honor his contract?

Failing that you can always set his pets on fire.

electriceagle · Mar 20, 2012

Which state are you in? You may be able to file with your state department of labor.

If you are successful, the process will be slow and may or may not result in you recovering wages. If the story that you give is accurate and he is guilty, it would likely result in his being hit with crippling fines.

The question for you is: Does the benefit that you would give to other new lawyers by shutting him down (keep them away from his firm) outweigh the harm to your ability to get a good recommendation later (if you want a rec from him at all)?

You may want to repost this on the freeadvice.com legal boards.

KirStang · Mar 30, 2012

So, I obtained a new job with a commercial litigation firm approximately 45 minutes north of me. Looks like a very professional firm and I'm excited to start. I start April 9th.
--- merged: Mar 23, 2012 at 6:23 PM ---
Just thought I'd give an update and thank everyone again for their advice.

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