Legal Question in Credit and Debt Law in Virginia

Employee owed money

I find myself in bad situation. My employer has been taking money out for my health insurance, but has not been paying the premiums. Insurance has cancelled my policy due to the employers non payment about 3 months ago and he has continued taking these payments as well as uping the cost. He has now closed his doors for about a week and refuses to return phone calls. I have also found out that as a LLC his agent has quit due to lack of payment. What are my options to get my money back. I am worried the LLC will be cancelled too at the end of this year for non payment.

Asked on 11/16/06, 12:00 am

1 Answer from Attorneys

Jonathon Moseley Moseley Legal Associates LLP

Re: Employee owed money

First, if the insurance is important to you personally, if you can pay up the past premiums and bring the policy current, try to do it. Show the insurance company your pay checks with the health insurance premiums deducted to try to convince them to accept this. When you sue there is a concept (sadly, ignored most of the time but still real) that you must "mitigate" (minimize or control) your damages (loses). So if you have a way of minimizing your loss, you should do so, not only for legal reasons but also because you might not get anything back from your employer.

Second, the question is not whether the LLC is terminated as an LLC. The correct questions are whether the LLC has enough money to pay you and whether the owner(s) of the LLC can be made to pay personally. Normally, an LLC, like a corporation, shields the owners and officers (managers) from personal liability. Your trick is trying to get money from the owners if they have any money themselves.

What you describe sounds to me, in my opinion, like fraud if not actual theft of the money withheld from your paycheck. I would not focus on any obligation to give you insurance, because that is probably not very clear (I am guessing) in your company's policies. If this is considered as a contractual obligation to provide you with insurance, you may have a number of problems. In a lawsuit, I would try everything, but I would not emphasize that as the main thing.

I would focus on THEFT of the money taken out of your paycheck. It is fraud to take out the money for paying your insurance and then putting it in your pocket. (NOTE: I am again assuming that there is no clear contract that talks about providing insurance or how this is to be handled. If there is a clear contract on the question, then this may limit your options.)

This could be enough to "pierce the corporate veil" and make the owners and/or managers who did it PERSONALLY responsible for the money. Of course then the question becomes do they have any money?

I would consider running down to the courthouse, talking to the clerk of the general district court, and filling out a "Warrant in Debt" form for recovery of your lost money.

Third, I would immediately start looking for another job, obviously. Financially, it does not sound like your employer will be your employer for long. And obviously once you start legal action to recover your money, that will further sour the relationship. So all of this needs to be done in combination with finding another more stable employer.

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Answered on 11/16/06, 9:11 am

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