First contract, am I being stiffed? 1

[dmusicant]

I posted in this forum (Subject: Advice for first time contractor, my first and only post at Tek-Tips) about a month ago concerning my first contract position. My concerns at the time were with the nature of the contract.

The contract was to be for 6+ months, probably to be renewed at least once. However, it only lasted 2.5 days.

My contract was with a recruiter, and it stipulated that the client could dismiss me at any time with no reason necessary. After 2.5 days on the job (I started in the middle of a day), the recruiter called me and asked how things were going and we had a little conversation and I told him truthfully that I thought they were going fine. The person I worked very closely with (5 years a contract worker at the same client company, and under contract with the same recruiter as I) had the next two days off, so I did too. The next day (a day off for me) the recruiter calls me early in the evening and says that the client has decided to let me go. There's no firm idea of why they were dissatisfied with my performance or conduct. The recruiter says he will try to find out more.

By my wage agreement, I'm owed $700 pretax dollars. I call the recruiter almost two weeks later and ask when I will get a check. He says he will find out and get back to me. I call him again a week or so later and he says he will get back to me next day. Two days later I call and leave a message, and he doesn't return my call and today I call and he answers the phone and says he was about to call me. He tells me that his client has refused to pay for my services. I ask him why. He says he doesn't know and will try to find out and get back to me. I'm indignant and say that I did everything they asked me to do and didn't fail in any of the tasks and I can't imagine why I shouldn't be paid. I tell him that I think that I am being robbed. I say I don't know what their relationship is with this client but under the circumstances they should pay for my services. I know that they have been doing business (providing contractors) with this client for at least 8 years and that they currently have at least 2 contractors at this company, one for 2 months and the other for 5 years. He says he will talk to his (the recruiting company's) "managing supervisor" and try to find out what they will do. I tell him that my contract stipulates they can let me go at any point they determine that they don't want to retain me, and that they did not do so for over 20 hours of my service and that therefore they should be responsible to pay for my services. He says he will get back to me "shortly." I manage to get a promise from him that he will call me tomorrow.

What is my standing here? Thanks for your input.

Dan

 

[franklin97355]

It all depends on what the contract says. the people you signed the contract with are the people that pay you but it depends on how they verify your hours. Read the contract and quote it when you talk next.

 

[dgillz]

Don't rely on this guy so much. For example instead of letting him talk to the "managing supervisor", insist that you talk to him/her yourself, immediately. If he does not comply get a name. Then call back and ask to talk to hi boss. Call the payroll department of this company and explain the situation. Call the company that you worked at and ask why your services were not wanted. If done professionally, this will be well taken. There are tons of things you could do, and from your post you have done none of them.

Software Sales, Training, Implementation and Support for Macola, eSynergy, and Crystal Reports

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[chiph]

Probably time to show up at the recruiters office in person. It's much harder to say "no" when someone is standing in front of you. Be polite, but be firm.

Otherwise, your best route is small-claims court.

Chip H.


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[sleipnir214]

Only a qualified legal professional can tell you where you stand with the contract. If you did not understand it when you signed it, you did something extremely unwise, and you should correct your earlier mistake by finding a qualified legal professional and getting him/her to explain it to you. That contract could specify all kinds of things that will keep you away from the money you think they owe you.

I agree wholeheartedly with chiph and dgillz. If you don't get off your tuckus and start being more active in pursuing this, you will get screwed now. If you make a habit of not actively pursuing things like this in future, you will continue to get screwed.

Want the best answers? Ask the best questions!

TANSTAAFL!!

 

[dmusicant]

franklin97355 (TechnicalUser) 31 Oct 05 19:26
It all depends on what the contract says. the people you signed the contract with are the people that pay you but it depends on how they verify your hours. Read the contract and quote it when you talk next.

I reread the contract and there's some weird stuff in there. What sticks out is that the language formulation essentially delineates a 3 party scenario. There's the recruiting company (X), me and a TPU (third party unit), which can itself have client companies. Inasmuch as the contract does not specify who or what the TPU is in this case, it's rather a matter of conjecture. After being on the job I was informed by the man who appeared to approve my hire (himself evidently a 2 month contractor with the same recruiter), that I should represent myself as being a contractor with a different company (Y). I posted in the aforementioned thread (my first post in this thread alludes to it) about my confusion in regards to this. I don't know, but I surmise that the TPU in my contract refers to company Y, whose client is the client company who we are doing the work for (Z). When I asked the recruiter who the client is, Y or Z, he said it was Z, but I somewhat doubt this (I simply don't know). He did tell me (and I suppose I believe him) that company X and Y are CEO'd by the same woman, the woman who signed my contract.

OK, that stuff aside, what sticks out in the contract as I read it now is that it says that company X (the only specified company in the contract) does not have to pay me for any hours that I work for which the client company does not pay. It even says that should I receive early payment (earlier than the 45 days specified) by virtue of a convenience arrangement with the recruiter (company X), I have to repay them that money. Now, I figure that language in the contract is questionable and may not be legal. I have no control as a worker of whether my employer (well, not employer precisely, but the company I'm contracted with) is paid by their client company. How can they specify even in a contract that they will consent to pay me only in the event that the client company pays them for my services?

Furthermore, there's talk in the contract about the TPU signing off on my hours. The man who appeared to hire me and was essentially my boss on the job didn't speak to me about how I keep my hours. I kept them, of course, and on Wednesday morning (I started middle Monday) I asked him about that and he said he would give me a time sheet. He had not by Wednesday afternoon and I couldn't find him when I looked in his office when it was time to leave. As it turns out, that was my last day there. That evening, I received a somewhat late call from the recruiter (about 7:45 PM), and I had gone to bed early and was asleep. However, I answered the call and had about an 8-10 minute conversation with him. As it turns out, my answering machine had turned on, so I have the whole thing recorded! I re-listened to it this morning. He asks me how things are going on the job, and I affirm that they seem just fine. I ask him about the confusing situation with my being asked to say I am contracted with company Y (the one that's CEO'd by the same company as company X, the one stated in my contract) and he told me the situation and that they are a "gatekeeper" set up the keep things less confusing for the client company. He said I should say I'm working for them, not the company in the contract. I ask him about how I should keep my hours and he says he will email me a time sheet next morning. He did not, but the following evening (Thursday) he called me to tell me that my employment had been terminated by the client company. I told him my hours and he said he would submit them to the client company for me. He certainly didn't (and as yet hasn't) asked me to submit my hours in any other form, an invoice or whatever, but I suspect they try to say that I didn't properly invoice them for my hours as an excuse for refusing to pay me.
- - - -

dgillz (Instructor) 1 Nov 05 2:11
Don't rely on this guy so much. For example instead of letting him talk to the "managing supervisor", insist that you talk to him/her yourself, immediately. If he does not comply get a name. Then call back and ask to talk to hi boss. Call the payroll department of this company and explain the situation. Call the company that you worked at and ask why your services were not wanted. If done professionally, this will be well taken. There are tons of things you could do, and from your post you have done none of them.

I asked for the managing supervisor's name (I think he had said it, and I suspect it was the CEO, whose name is on my contract, but I didn't hear or make out what he said), and he wouldn't repeat it but bogarted that little piece of information, substituting "managing supervisor." I could call the company and ask to talk to the CEO herself, also possibly the payroll department, although I doubt that they will accommodate me. I could call the guy who was responsible for hiring me, himself a contractor of 2 months with the same company (I believe), and ask him why I wasn't retained. I was introduced to several people at the client company, but no one informed me what their standing was in the company other than one man, who I was told ran a large segment of the company (not a big company, however) and was the son of the big cheese. I can't call him - he probably doesn't even know about why I was hired or fired.

There are probably tons of things I can do but I posted this thread less than an hour after I was told that they didn't want to pay me. I thought I'd ask here before starting to pursue those various things. After all, this was my first contract position - I've had many jobs, but always as an employee, never as a contractor.

- - - -

chiph (Programmer) 1 Nov 05 11:35
Probably time to show up at the recruiters office in person. It's much harder to say "no" when someone is standing in front of you. Be polite, but be firm.

Otherwise, your best route is small-claims court.

Chip H.

They are probably a 15 mile drive, but I guess I could just drive there and ask to speak to the recruiter I was dealing with and/or the CEO herself.

My sense of it (and like I say, I'm a first time contractor and I've never fought any civil action in court or been involved in one) is that I have a good case in court. Seriously, I'm tempted to tell them that if they don't pay me I'll take them to court, I'll win and I'll then proceed to thoroughly discredit them as a firm. However, I think I should be more diplomatic than that. I should try to understate things, withhold any threats and just let them be implicitly understood rather than explicitly. Usually, you can get what you want when you are in a strong position without using threats, I've found. However, like I say, I'm a contracting newbie and don't have a great sense of just what my position really is here.

Thanks for everyone's replies.

 

[franklin97355]

Sounds like you've been stiffed. Next time as the others said above, read and UNDERSTAND the contract before signing. And don't take the word of a recruiter EVER

 

[dmusicant]

Sounds like you've been stiffed. Next time as the others said above, read and UNDERSTAND the contract before signing. And don't take the word of a recruiter EVER

Maybe, but I find it hard to believe they can get away with that. Like I say, I'm inexperienced but my hunch is that in small claims court I will prevail and they will pay. Then I'll do my best to give them a bad name in the developer community. I know quite a few developers around here and belong to an organization of some reach. I also have a sense of right and wrong (i.e. a conscience). Whether I win in court or not, if they make me go to court I'll try to put them in their place. I sort of doubt they'll want to go to court and will just pay me, but who knows?

 

[dmusicant]

Sitting on my tuckus? Trust me, I've only begun to fight. It's >31 miles to their office, but I'm going to drive over there and ask to speak to the person who signed my contract (the CEO). I'll submit an invoice for my hours worked along with an explanation that I was provided with no timesheets by any party in spite of my asking for them and that I was assured by my recruiter that he would submit my hours for me. I will ask for an explanation of what's going on and hope to leave with a check or an assurance that my check is forthcoming. By implication, one of those not forthcoming, I will take necessary actions.

 

[MDXer]

Small claims court is probably your best bet. It sounds like what happened is that your company tried to increase hours billed to client company by adding another body to the project and the client company didn't go for it, and is refusing to pay for what they didn't ask for.

An amount this small going to small claims court they might just ignore so you could end up with a default judgement. Remember getting the judgement is usually the easy part, getting the judgement paid can be even harder.

Shoot Me! Shoot Me NOW!!!
- Daffy Duck

 

[fredericofonseca]

Regardless of that try and speak with the final customer and ask why you were let go. politely.

It may even happen that the customer will be able to take you directly afterwards, either now or later, this if the reasons behind you leaving are not related to your performance (which it doesn't look like).



Regards

Frederico Fonseca
SysSoft Integrated Ltd

http://www.syssoft-int.com

 

[chiph]

If the contract is talking about a Third Party Unit, it sounds like it was written as a corp-to-corp (I am not a lawyer - you should consult one before taking my advice), and so submitting an invoice is a good first step. Make sure you have payment terms detailed on it (net 30 days, etc).

When they don't pay, then take them to court.

Whatever you do, don't gloat. Don't say "I'm taking you to court, and I'll then proceed to thoroughly discredit them as a firm." That won't do you any good. Any discrediting will be a result of the judgement against them.

Remember, it's not personal, it's business. If someone writes a bad check to a grocery store, they take them to small claims court and don't take any more checks from that person. There's no screaming or shouting -- it's just business. Same thing here.

Also, before approaching the (end) client, did you sign a non-raid or non-compete contract with the recruiter? And... if the client wanted you off-site because they weren't willing to pay for your services (recruiter pulled a fast-one on them), it's not likely they'd want you back. :-(

Chip H.


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[dmusicant]

Also, before approaching the (end) client, did you sign a non-raid or non-compete contract with the recruiter?

What is a non-raid or non-compete contract? I do think they had non-compete clauses in there. It is a pretty extensive contract, some 6-7 pages or so and I did read it quite carefully before signing it and faxing it to them. I'm no lawyer and a first-time contractor so the legalese and some of the terms had me confused. The other threads I started (one here, a couple in a couple of newsgroups) helped clear up a lot of confusion I had with the contract.

Chip, on your advice...

It's much harder to say "no" when someone is standing in front of you. Be polite, but be firm.

... I drove over there this afternoon and confronted them and your words were very much in my mind. I was calm (although I couldn't help being intense) and made an effort to be polite throughout. It appears to have worked. I handed the recruiter an invoice, saying I knew he behaved as though it wasn't necessary, but it may help clear up any misunderstanding. I was introduced to my recruiter, who I'd never met and he brought in his "managing supervisor", who it turned out was the woman who signed my contract and is also the CEO of the company and their "gatekeeper" company. She seemed to be vacillating. I offered her an invoice as well, and she accepted it. At first she said she didn't know if or why the client company wouldn't pay for my services. Then she quickly softened as we spoke and said they might arrange for my payment and quickly changed that tune to an assurance that they would pay me ASAP, which is next Friday. I asked when I would receive the check and she said the following Monday, which would be 12 days. The CEO wondered if they had my 1099 form, and I said that I had the contract with me along with a copy of my 1099 and they were free to copy it, which they did. I did not gloat, I did not make any kind of threat (although I certainly had been thinking of those things much of the day). Of course, it won't be a done deal until the check clears in my bank, but I figure it's probably resolved.


However, I still don't like the way they do business and I'll be looking for any similar clause in any future contract I may sign and insist that it be stricken or changed - if some third party decides they don't like what I've done I don't want that to mean I won't get paid. In the real world, as far as I know, you get paid your wages for time worked as long as you were doing your job to the best of your ability and in accordance with all sensible guidelines (i.e. show up on time, don't steal anything, etc.), and your employer was in a position to give you the heave ho at any time without having to even provide a reason. Under those circumstances, you should be paid for time worked, not told that the client decided you weren't worth the money after letting you work for X number of hours.

Three days after I was informed I was let go I called the man who evidently hired me, also under contract, probably by the same company, for two months. I believe he said something like my skills or speed at programming was judged insufficient. It's been 3 weeks, and I don't recall the conversation in detail.

Concerning whether the client company would want me back: Well, I don't believe that the recruiting company was trying to pull a fast one on the client company. I don't know that for a fact and I don't really have much of an idea what relationship they have with each other, so I could be wrong there. However, they have apparently been doing business regularly if not exclusively for their programming needs for at least 8 years. Truly, I had no sense of who in the client company was even professionally concerned with my performance. In that regard, the situation was strange. It seemed to me that the person who was evaluating me was simply that person with whom I worked closely, the other programmer who assigned me the tasks I was doing. No one else seemed to be involved. Of course, that was merely my sense of it after 2.5 days on the job. He'd been working there for 5 years. He was under contract the same as I, but he confided in me that he considered himself an employee of the client company, something of a conceit and a confession, clearly. He was the sole remaining programmer, the more chief programmer of 8 years having resigned his post the very day I was interviewed for the job. Perhaps this programmer of 5 years was asked if he thought I was going to produce the results they were hoping for and he replied "no." How things were handled after that was something of a catastrophe, as far as I'm concerned. I had to make a really unnecessary (should have been) trip of some 63 miles today on the worst commute in Northern California (the 880 freeway).

The client company is not in a position to hire me directly, anyway. My contract forbids it, in no simple or concise terms. When I was told that they'd decided to let me go I asked that they reconsider, evaluate my work on its merits. Nothing came of that, of course. I still wonder if I should warn other programmer/developers I know in the area to be careful with these folks. They've since posted on a well known local job site. I'm going to a developers' meeting in a couple of days and may bring up the subject.

 

[chiph]

What is a non-raid or non-compete contract? I do think they had non-compete clauses in there.

A non-raid clause means that the client company won't attempt to hire you away. The converse of that is that the contracting company won't attempt to hire any full-time employees away from the client.

A non-compete clause means that you won't go into competition with the client or the contracting firm. This is the one you really have to be careful of, as recently these have been becoming very restrictive. Some will attempt to prohibit you from working in the local area (for anyone!) for 6 months or more. This is unreasonable, and I wouldn't sign one like that. A more reasonable restriction would be that you promise not to work for any direct competition for six months. Get a list of who they consider to be their direct competitors if you can.

I'm glad your meeting went well, and I hope they send you a check.

A side note: During World-War II, both the US and Britain ran groups of ex-Nazis as spys, inserting them back into the fatherland to report back. Obviously, there was a lack of trust present, so both goverments assigned their best people to watch over them, and put the screws to them if necessary.

The US assigned lawyers to this task. The British assigned bankers. The bankers were the more feared of the two sets of handlers.

So that's why I said to regard it as just "business". You shouldn't have any emotional attachment to the contracting firm -- they're just there to cut you a check every two weeks for work you do. No check means work stops.

Chip H.


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[dmusicant]

So that's why I said to regard it as just "business". You shouldn't have any emotional attachment to the contracting firm -- they're just there to cut you a check every two weeks for work you do. No check means work stops.

Thanks, Chip. They had an eyebrow raising bit in the contract that stated that I would get paid within 45 days of their being invoiced for hours. It did say that I may ask for earlier payment and they may comply but if paid before 45 days, evidently, they still have the prerogative according to the terms of the contract to ask for the money back if they don't get paid by the client.

The contract also had some (it seems to me) rather stringent anticompetitive restrictions. It said I could not work for any entity who I was introduced to by virtue of my work there for a period of one year AFTER completion of the contract and any extensions. The recruiter assured me over the phone that this was only for contract work and that I would be good to go if and when the client wanted to hire me as an employee, and I was told that this was what was anticipated. So, I went ahead and signed the contract.

It occurs to me now that my appearing at their door yesterday was a sort of post-Halloween (Nov. 1) trick or treat ploy, and it appears to have worked - I have my fingers crossed. They did NOT drop a check in my briefcase, as I'd hoped. But the promise, although not in writing, I figure counts for something, especially if this does wind up in court.

Interesting the parallels with wartime espionage and the implications that bankers are more hardnosed than lawyers. That does make sense.

Last night I realized that I misstated the name of the client company in my invoice, and rather badly. Couldn't manage to fax them corrected invoices, but will do so today if I can get the bugs out of my fax software/hardware configuration or whatever's screwing that up. I don't want to give them any ammunition against me and my being fastidious can only persuade them to take me seriously. If not, I can mail the corrected invoices.

Thanks for everyone's help.

 

[shannanl]

I would make sure you document everything. Send an invoice and send it CERTIFIED MAIL so they can't say they did not get it. I can't imagine a loophole where they can't pay you for actual hours worked. If that were the case, many companies would try to do that. I agree with the small claims court.

Shannan

 

[dmusicant]

I would make sure you document everything. Send an invoice and send it CERTIFIED MAIL so they can't say they did not get it. I can't imagine a loophole where they can't pay you for actual hours worked. If that were the case, many companies would try to do that. I agree with the small claims court.

Shannan

Thanks. Yes, for that very reason I don't think they would chance trying to weasel out of paying me at this point, particularly after assuring me that they will cut me a check this coming Friday, to be received by me this coming Monday. They should figure I'll win in court and it's clearly not worth their showing up in court to contest my claims for rightful payment. I decided not to alert my local user group to their shenanigans, but will still do that if they balk at paying me at this point, for what it's worth.

 

[dmusicant]

The check came today.

 

[chiph]

Glad to hear it.

Chip H.


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[technome]

Your lucky you got payed.

"An amount this small going to small claims court they might just ignore so you could end up with a default judgment.
This is how it went down for a friend of mine in New York. You make a claim in small claims, you get an appearance date. You go down, they don't show up, another appoint, they don't show again. Third appointment, a lawyer shows up and lies like a dog, you loose. Unless you have proof you will loose... then, as the quote above, even if win, you have to collect. If they do not remit payment, in my area, you hire the Sheriff, go to the office, then you get paid, or you take office equipement, but it costs money for the Sheriff.

If you contract, you should have a time sheet which is signed as you leave a premise for the day. Once a time sheet is signed by an employee of a firm this constitutes "authorization", a company won't get a way with saying the employee was not authorized to sign. Do not rely on a recruiter or anyone else to supply a time sheet; if you have to make one yourself.

Once I had a lawyer go after me over authorized work. I had a verbal agreement with a head honcho of a school I contracted services too,I worked for months at the site, on and off. Previously I worked for the school as an employee, the agreement was they paid for my medical, I keep there network going. The lawyer was on the board of this non profit school and figured he, he would try to get me to pay for all the past medical coverage.

I took enough basic business law in college to literally tell the lawyer to stick the lawsuit up his ass, that I would drag multiple school employees to court as witnesses to the agreement, and the fact I was present at the site for months, never heard from the lawyer again.


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