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Legalease
Legalease, Lawyer
Category: Employment Law
Satisfied Customers: 16338
Experience:  13 years experience in employment law, unions, contracts, workers comp law
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I was off on 1/15 but did not receive my last check until

Customer Question

I was laid off on 1/15 but did not receive my last check until 1/31. Also, I was paid cash when I first started and because that pay didn't count, I was denied umemployment
Submitted: 1 year ago.
Category: Employment Law
Expert:  John replied 1 year ago.

The only thing this law (H.R. 1314) does that will be recognizable to the average person is as follows:

Deemed Filing

  • The law now automatically deems a claimant who applies for retirement benefits to have applied for any spousal benefit to which he or she is eligible, for any month in which he or she is eligible. (previously you could take your spouses benefits while yours accumulated)
  • Automatically deems a claimant who applies for a spousal benefit based on age to have applied for his or her retirement benefit for any month in which he or she is eligible. (previously you could suspend your benefits while they gained in amount after full retirement age, and you'd draw off your spouse while your benefits grew to a max)
  • Effective for individuals who attain age 62 after December 31, 2015.

Voluntary Suspension of Benefits

  • Prohibits:
    • any individual from receiving retroactive benefits for a period of voluntary suspension;
    • any individual from receiving benefits based on the earnings of an individual who has suspended his or her benefits, during the period of suspension; and
    • an individual whose benefits are suspended from receiving benefits on any other record, during the period of suspension.
  • Effective for requests for suspension submitted beginning 180 days after the date of enactment

What these changes do is phase out ways that married dual earner couples were using their credits to take in more social security $. Namely:

  • File and Suspend Strategy. This strategy works for couples in which one spouse is ready to retire, but the other spouse is planning to continue working. A working spouse who has reached full retirement age can file for benefits and then immediately suspend them. Once the worker suspends benefits, the non-working spouse can begin receiving spousal benefits while the worker continues to work. The longer the worker delays retirement, the more delayed retirement credits he or she will accumulate.
  • Claim Now, Claim More Later Strategy . Under this strategy, the spouse who earned less would claim early retirement benefits at 62 while the higher-earning spouse waited. The higher-earning spouse would claim a spousal benefit once he or she reached full retirement age. Then at 70, the higher-earning spouse would claim the maximum amount of his or her retirement benefit and stop receiving the spousal benefit.

If you already used these strategies or never planned to use them, then you have nothing to worry about. If you planned to use them for your spouse, then you need to do that before the law changes.

Customer: replied 1 year ago.
I don't think you answered my question. This for unemployment benefits and getting paid cash v. W2 taxable wages
Expert:  John replied 1 year ago.

Yes this was response to another question and a website gitch. I' opt out

Expert:  Legalease replied 1 year ago.

Hello there -

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Wow ! There did seem to be a material GLITCH here -- the response given was not on target to the question that you are asking and I apologize for it. Sometimes the screens slip on our end so we can be viewing a different question and the answer to THAT question ends up getting posted. I am another attorney here at Just Answer with specific experience regarding employment law and whether/when an employee is paid in (A) cash (B) W 2 or (C) 1099 issue as well as how any or all of these payment methods interact with unemployment benefits.

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If you have proof that you worked certain months or time periods and were paid in cash (anything at all that you can produce as evidence in this matter will help -- if you do not have anything that states the amount of cash you were paid you can use emails and other documents with dates so that you can show that you WERE working for this company during that time period in question). If you have any witnesses who are willing to sign a short statement that sets forth any of the dates that you worked in that time period, then any such statements would help you immensely. You have no idea how this company will react when you file the unemployment claim again and claim that you worked during a certain time period ---- they may smile and say (A) Oh! We are sorry we forgot to write in those months for him, but he did work it and let us get you that information ---- OR (B) Oh! HE is mistaken and he only worked here from XXXXXX to XXXXXXX. That is your real issue here -- how the company will handle the matter when you make the claim through the Dept of Labor and the Unemployment Dept.

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If they deny that you worked the additional time and you have some proof, then you will have to submit that proof to the Dept of Labor regarding the matter and you should reopen your unemployment claim so they will end up using the correct dates of employment to calculate your unemployment benefits. Remember -- you have done NOTHING wrong here in this situation and you simply want the taxes paid AND the unemployment department notified of the proper dates that you worked so that you will receive a fair unemployment check as you are entitled to under law. Here are some links for you to the appropriate websites --

Illinois Dept of Revenue / Wage & Hour issues -- http://www.revenue.state.il.us/#&panel1-5

and an article discussing wage & hour issues -- http://www.accountingweb.com/aa/standards/employers-paying-the-penalty-for-wage-and-hour-violations

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Here is the Dept of Labor / Wage & Hour Complaint forms and instructions: https://www.illinois.gov/idol/Pages/Complaints.aspx

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Here is the Dept of Labor / unemployment department complaint center: http://www.ides.illinois.gov/Pages/BenefitRightsInformation.aspx

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In your case, start with the Illinois Dept of Labor and file a complaint regarding the payment of wages and taxes and then go back to the unemployment section of the Dept of labor and file a claim listing all of the months that you worked for them where they paid you cash and did not declare those months -- and then you should also contact the Illinois Tax Department because THAT agency is the one with the teeth and if you have some proof that you worked for a company and were paid cash in hand then the Tax Department wants to know about it. As a matter of fact, once the tax department gets involved, the other state agencies will fall right in line after that.

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I hope that helps. Please let me know if you have further questions. If not, can you please press a positive rating in the ratings section above so I will be paid for my time? I am paid nothing for assisting you with this answer unless you press a positive rating above in the 5 star rating section. If you press the middle star or the fourth or fifth star on the right then you will be pressing a positive rating and I will be paid for my time helping you. Pressing a positive rating will NOT cost you any additional money -- it simply acts as the trigger to Just Answer (this website) to pay me for my time helping you with this. THANK YOU VERY MUCH !!

I hope all of this works out for you and again we apologize for the mix up regarding the answers. You should have no problems filing these complaints and there are no legal issues for you if you open up these issues on this former employer with the Dept of Labor and the Dept of Revenue. In the event that they try to throw this back at you and say you somehoe "knew" that this was happening and how you were being paid -- you simply tell them that you had NO idea that you were being paid "off the books" and you want it corrected so that you can receive the correct amount of unemployment benefits for the correct amount of time worked !!!

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MARY