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Can My Job Withhold My Last Paycheck?

Published By | Feb 7, 2022 | Employment Discrimination, Wage: Minimum Wage, Wage: Overtime |

Wage and Hour Attorney Best Answers: How long do I have to wait for my last paycheck? What happens if my boss won’t pay me after I quit? What damages are available under the FLSA? Can the company that I work for retaliate against me for complaining about not being paid overtime or minimum wage?

The Fair Labor Standards Act (“FLSA“) is a federal law that protect employees by making sure that they are paid correctly. Most of the time, our attorneys use the FLSA to enforce workers’ rights to minimum wage and being paid time and a half for overtime. (See Who qualifies for overtime pay?; Wage & Hour: Employers Stealing Time Before Work). Today, we are looking at the FMLA to address the common question that arises after an employee quits or puts in two-week notice, which is, “Can my job keep my last paycheck?” The answer is absolutely not. Employees are entitled to get paid for all hours worked regardless of how the employment ended.

Under the FLSA, failure to pay an employee his or her final paycheck technically results in the employee being paid less than minimum wage for the pay period at issue. Keep in mind that your job does not have to pay you on the day you quit but is still subject to the FLSA requirement on paying employees on a timely basis. How often payment is required is set by each individual state’s laws. A summary by state is provided by the Department of Labor (“DOL“): State Payday Requirements.

Let’s use Ohio, which under R.C. § 4113.15 requires semimonthly payment (twice a month), as our example. Specifically, the wage statute provides: “Every employer doing business in this state shall, on or before the first day of each month, pay all its employees the wages earned by them during the first half of the preceding month ending with the fifteenth day thereof, and shall, on or before the fifteenth day of each month, pay such employees the wages earned by them during the last half of the preceding calendar month.” If your company holds your final paycheck beyond this period, the employer will have violated both this state statute and the FLSA. Under Ohio’s R.C. § 4113.15, the employer will be forced to pay the last paycheck plus the greater of six percent of what is owed or $200. There is not much bite there for additional damages, but it will get you paid. However, under the FLSA, employers who willfully or repeatedly violate the pay requirements are subject to criminal prosecution, civil money penalty of up to $1,000 for each such violation, and liquidated damages of an amount equal to what is owed (which means you get paid double). Additionally, Section 29 USC § 216(b) of the FLSA provides that the Court in an action to recover unlawfully held wages “shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorneys fee to be paid by the defendant, and costs of the action.” 29 USC § 216(b).

That being said, some employers who are intent on mandating two-week notice requirements can put workplace policies in place that makes payouts of paid time off (PTO) contingent on giving two-weeks’ notice. However, in California – a very friendly employee state – it is unlawful for an employer to withhold earned PTO.

A recent lawsuit brought by the DOL in Georgia. Andreas Flaten worked at A OK Walker Autoworks until he quit, which did not sit well with his boss Miles Walker. After Walker and the company withheld Flaten’s last paycheck, Flaten contacted the DOL to find out his rights. When the employer found out about this, Walker made the effort to go out and gather 91,500 pennies (for the $915 owed), grease them all up, drive them across town, and dump them on Flaten’s driveway with a pay stub in an envelope filled with expletives. After dumping the pennies on Mr. Flaten’s driveway, Defendants posted the following to their company website, “What started out as a gotcha to a subpar ex-employee, sure got a lot of press . . . . Let us just say that maybe he stole? Maybe he killed a dog? Maybe he killed a cat? Maybe he was lazy? Maybe he was a butcher? . . . know that no one would go to the trouble we did to make a point with out [sic] being motivated.”

The employer faces two big problems with this tactic. First, the FLSA has very specific anti-retaliation tactics. Companies and individuals who retaliates or discriminates against an employee in retaliation for raising FLSA issues is subject to fines, even criminal prosecution, and payment to the employee of “legal or equitable relief … including without limitation employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount” plus attorneys’ fees and court costs. Punitive damages are available in appropriate cases where there is evidence of willful or malicious conduct. Well, it looks like Walker, individually, as well as his company will be liable for twice the damage to clean the grease stains off the driveway, punitive damages and attorney’s fees because there is no way around the fact that greased pennies and the admissions on the website kill any defense the employer might raise. Hell, he admitted that they withheld the final paycheck intentionally as a “gotcha.” And, it does not matter if Flaten was the laziest employee of all time or killed his dog, the employer must pay employee for all time worked.

The second issue is that when employees contact qualified wage and hour attorneys, those attorneys are likely to find additional problems. In this case, the DOL found that Walker paid overtime at straight wages instead of time and half for all hours over 40 hours worked per workweek. To make matters worse, Walker failed to keep track of the number of hours worked by their employees, which is another FLSA violation and precludes Walker from defending the overtime claim – how can he deny that an employee worked overtime if the company has no records of how many hours he worked. Remember, because the FLSA puts the burden on the employer to keep track of hours worked, the burden of proof does not rest on the employee to do so. To that end, the DOL is now seeking $36,971 in back wages and liquidated damages from Walker.

If your employer withheld your last paycheck or is not paying you all of the wages owed to you, our wage and hour lawyers are ready to help. If the company you work for is paying you less than minimum wage, unlawfully deducting money from your paycheck, not paying you time and a half for overtime, or is otherwise cheating you out of wages requires contact the minimum wage violation lawyers and overtime claim attorneys at The Spitz Law Firm today for a free and confidential initial consultation. You may have a claim under the Federal Fair Labor Standards Act or Ohio Fair Labor Standards Act. The wage and hour lawyers at Spitz, The Employee’s Law Firm will provide you with the best options for your wage and hour pay dispute situation. We handle wage theft cases all over the United States.

Disclaimer:

The materials available at the top of this overtime, wage and hour web page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “How do I get my last paycheck?”, “When does my job have to pay me my last check?”, “My paycheck is not right…” or “What do I do if my boss retaliated because I complained about a mistake in my paycheck”, the your best option is to contact an Ohio overtime attorney to obtain advice with respect to FLSA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at the top of this page or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.