What To Do When You’re Not Paid

802 Legal Corner

Volume CIII, No. 4April, 2003

Harvey Mars, Esq., Local 802 Counsel, Leibowitz & Mars, LLP

To most working musicians, this scenario may be a familiar one: you just finished the gig and the owner of the bar hands you $500 cash. The only problem is, you had agreed to play for $800. Or, maybe you have encountered this situation: the contractor hands you a check for $1,000. After a week, you receive your bank statement back with the original check stamped “insufficient funds for collection” and fifteen dollars has been deducted from your account. What do you do?

Well, if you are protected by a Local 802 collective bargaining agreement, the answer is obvious – call your union representative who can contact your employer and demand payment. If these efforts prove futile, the union can enforce its agreement using the contract’s grievance and arbitration mechanism. If the dispute goes to arbitration, a neutral labor arbitrator will issue a binding determination whether or not the payment is actually owed. If it is, the arbitrator can issue an award which is enforceable in court for the amount you are owed. All this is done, of course, by the union at no cost to yourself by virtue of your union contact.

Needless to say, the best protection you can have against “deadbeat” employers is a union contract.

Unfortunately, musicians don’t always have the benefit of a union contract. This article addresses those hopefully rare situations when you have no formal collective bargaining agreement, but wish to hold your employer accountable for money which you have rightfully earned. The first thing you should know is that if you are persistent, the chances of your collecting the money from a financially solvent employer are high. However, the collection process takes fortitude, time and effort – even if you have legal representation.

Let’s assume that you have demanded full payment from your employer and your demands have fallen upon deaf ears. If you are owed less than $3,000, the place for you to go is the Small Claims division of the New York Civil Court. Each of the boroughs in New York has a Small Claims Division. Small Claims may also be processed in Suffolk and Nassau Counties. The $3,000 limit is exclusive of interest and fees. Further, you may have multiple claims which can aggregate more than $3,000. If your claim is above $3,000, the Small Claims Division has no jurisdiction and you will have to initiate a formal lawsuit, which is best done by an attorney.

The small claims process is initiated by payment of a nominal fee and filing a one page form (complaint). The claim must be submitted in the borough (or state) where the employer is located. This is important because your claim will be rejected if it is initiated in the wrong venue.

Once the complaint is filed, it will be “served” by the court upon your employer. You will also be given a date for your appearance in court when you file the complaint. Make sure the date is one for which you are available because if you do not show, your claim will be dismissed. After service of the complaint, the defendant is required to submit an answer – a document in which a defense to your claim is asserted. If your employer fails to file an answer on a timely basis – within thirty days of service of the complaint – they will be in default and you will be entitled to request a default judgment when you appear in court.

OK – the court date has arrived. Make sure you get to court early. The small claims part is very crowded and you need to know when your case will be called.

The court clerk will call out each case on the calendar for that session. Make sure your case is actually on the calendar for that day – which is usually posted outside the door of the courtroom. Also, make sure you have all the documents and information needed to prove your case – try to bring originals. We’ve all watched those court TV programs where litigants who fail to bring documentation of their claims get yelled at. Don’t let this happen to you.

When your case is called, the clerk will note your appearance. If you don’t respond, your suit will be dismissed. If the defendant doesn’t appear, request a default. Often, when a default is taken, you will still be required to prove how much money you are owed. Remember, the more documentation you have, the better it is for you. Of course, you have the option of asking for an adjournment, such as when a witness who overheard your agreement with your employer is unavailable to attend. In that event, simply respond “application” when your case comes up. The clerk will give you a new date. However, don’t abuse the privilege because ultimately the clerk will mark the date “final” and no further postponements will be permitted.

After your case is called, you will also have a choice to have your dispute heard by either an arbitrator or by the court. There are advantages and disadvantages to either approach. If you choose arbitration, your claim will be decided much quicker. However, you lose the right to appeal. This clearly is the better choice if your claim is one which is easy to prove – like the bounced check scenario mentioned earlier.

Having your case tried by the court is a time intensive process. If the matter is complex and involves a lot of documentary evidence, you probably would be better served by requesting a court trial. Most small claims court judges also try cases in Civil Court – which has a maximum jurisdiction over claims up to $35,000. They are busy with their normal docket of cases and often it will take several court appearances for you to actually get a judge involved. If you can’t afford to spend a lot of time in court, ask for an arbitrator.

At the hearing, you will be requested to submit your proof. This will entail stating the nature of your claim (under oath) and presenting whatever documents you have supporting your claim. Witnesses may also be permitted to testify for you. Additionally, if your employer shows, he or she may be permitted to ask you questions as well. No matter what, be respectful of the arbitrator or judge. Don’t engage the defendant in an argument. That will serve no purpose and potentially make your claim appear weak. If you appear before an arbitrator, you will receive his decision in the mail. The court may issue a bench decision or a formal written decision.

Hopefully, this article will be useful to you – in the event your employer tries to stiff you. Next time, I’ll explain judgment enforcement methods so you can actually collect the money the court has determined you were entitled to.

Harvey Mars can be reached at (212) 765-4300.