How long can spiteful employer withhold paycheck?

[oohlalaw]

In California, how long can an employer hold back someone's final paycheck? The person in question found a new job and gave notice to the current employer some weeks in advance. Today was the last day of work. The employer is very spiteful and angry that the employee is leaving and told the employee to return later in the evening for the last paycheck. Employee returned, and the boss said, "I have 48 hours before I have to pay you, so come back tomorrow."

Is it correct that the employer can withhold payment for 2 days? And what recourse is there if the employer doesn't hand over the paycheck after 48 hours?

Thanks.

 

[HomeGuru]

In California, how long can an employer hold back someone's final paycheck? The person in question found a new job and gave notice to the current employer some weeks in advance. Today was the last day of work. The employer is very spiteful and angry that the employee is leaving and told the employee to return later in the evening for the last paycheck. Employee returned, and the boss said, "I have 48 hours before I have to pay you, so come back tomorrow."

Is it correct that the employer can withhold payment for 2 days? And what recourse is there if the employer doesn't hand over the paycheck after 48 hours?

Thanks.

**A: the person in question should contact the state DOL office and find out.

 

[cbg]

In California no, it is not correct that the employer can withhold the check for 48 hours.

Your friend's recourse is, as indicated, to contact the DLSE.

 

[oohlalaw]

cbg:

With reference to:
1.) A wrongful termination does not mean that you were fired for something you didn't do; it means that you were fired for a reason prohibited by law.

This brings to mind something else that happened yesterday (the last day of work). The employee mentioned to one of the bosses (the wife in a husband and wife team) that the person being trained by him needed training in one more aspect (the biz is a brew pub; new brewer doesn't know about beer filtration, an essential step) and offered to come in early on Monday to finish the training at no charge. Employee said that, in exchange, it would be nice if he could occasionally be a paying customer in the pub. (The employers ban all their former employees from coming into the pub.) The female boss blew up, yelled and ranted and stormed out.

Later, the husband boss (who was not on the premises) called and told employee to leave work and not return to work. This was early afternoon on the last day of work. The reason the boss sent the employee home 3-4 hours early on his last day at work? "You insulted my wife!"

Questions: Does this count as a termination? And if so, does it change things about having to wait 48 hours for the last pay check?

With ref to:
2.) The above answer, whatever it is, assumes that no legally binding contract or CBA expressly says otherwise. If it does, the terms of the contract apply.

There is no contract. This employer never uses contracts for any of the employees.

 

[cbg]

FYI, that is my signature and was not directed at you specifically.

However:

No, being sent home a few hours early on your last day does not turn it into a termination and it wouldn't be a wrongful term even if it did. There's no law that says you can't be sent home for a perceived insult. And no, it wouldn't change the answer about the 48 hours. I don't know where the employer got 48 hours, btw; on the rare occasions when the final paycheck is not due on the last day of work, the employer has 72 hours. 48 is a non-issue in CA.

 

[swalsh411]

The employer has 72 hours to pay due to a voluntary terms. As long as the employee gets the check within 72 hours DLSE won't do anything because no laws were broken.

 

[HomeGuru]

I wonder if the person in question got their paycheck yet.

 

[oohlalaw]

FYI, that is my signature and was not directed at you specifically.

No worries. I knew it was your signature; good idea with good info.

-- on the rare occasions when the final paycheck is not due on the last day of work, the employer has 72 hours. --

Employee says normal payday was Wednesdays, so in that respect, Thursday was ahead of the regular day for his paycheck. If the employer waits 72 hours from yesterday (Thursday) before issuing the paycheck, do weekends count in the 72-hour waiting period, or would the 72 hours be spread over Fri, Mon & Tues?

Finally, just out of curiosity, can you give a few examples of what might constitute a "rare occasion" for delaying pay?

Many thanks!

 

[oohlalaw]

The employer has 72 hours to pay due to a voluntary terms. As long as the employee gets the check within 72 hours DLSE won't do anything because no laws were broken.

Thanks! It's good to know that there is still hope for the employee to get paid without having to take any legal action.

 

[cbg]

The only time, in CA (this is very state specific), that final pay is not due on the last day of work is if the employee quits with less than 3 days notice.

In all other situations, pay is due on the final day of work.

 

[oohlalaw]

I wonder if the person in question got their paycheck yet.

Nope. I'll post a follow-up about this once we see what happens. Thanks.

 

[commentator]

In the absence of a contract, which of course does not exist here, they not only can delay your pay 72 hours, they don't even have to pay you what they usually paid you, as long as they pay you at least minimum wage. I have seen spiteful employers who were given notice, then delayed the employee's final paycheck as long as they could legally in their state, and then when they got the paycheck, the employee discovered it had been paid for the hours they'd worked times minimum wage, not the rate they'd been making. And DOL confirmed this was fully legal.

Notice is a courtesy. Since there's no contract requiring it, there's really no reason why you would have to give it, and no reason they have to accept it and cooperate with your last day of work being what you decided to let it be. As soon as you have given notice, then if the employer wants to, he can say "Leave right now! Forget the two more weeks!" and you are still the one who voluntarily terminated yourself. It doesn't change things to a termination just because you aren't allowed to work out your preferred notice. You're still the one who initiated the leaving. So the manager telling the person to go a few hours early on that last day doesn't change the separation to a termination for cause.

 

[HomeGuru]

commentator, and that happened in CA?

 

[oohlalaw]

In the absence of a contract, which of course does not exist here, they not only can delay your pay 72 hours, they don't even have to pay you what they usually paid you, as long as they pay you at least minimum wage. I have seen spiteful employers who were given notice, then delayed the employee's final paycheck as long as they could legally in their state, and then when they got the paycheck, the employee discovered it had been paid for the hours they'd worked times minimum wage, not the rate they'd been making. And DOL confirmed this was fully legal.

Would this apply even if there wasn't an hourly wage in question? Employee was on a monthly salary which was not based on hours worked. It was cheaper for the employer this way, as no overtime had to be paid. Thanks.

 

[cbg]

then delayed the employee's final paycheck as long as they could legally in their state

Unless the employee gave less than three days notice, in the OP's state "as long as they legally could" means before the employee leaves the workplace for the last time.