DON’T WITHHOLD FINAL PAY IF YOUR EMPLOYEE LEAVES WITH YOUR PROPERTY

Employers are often understandably flummoxed about what to do when an employee’s employment ends while the employee still has custody of the employer’s property. For example, an employee may wear his or her employer-provided uniform home at the end of the employee’s final shift. What’s the employer to do?

It’s important to recognize that employers’ options are very limited by state and federal law regarding employees’ final pay. Although the employer might be tempted to withhold the employee’s final pay until the item is returned, this is a bad idea. As a general rule, an employer cannot withhold or even reduce an employee’s final paycheck for the purpose of securing the return of the employer’s property, including a uniform.

In West Virginia, discharged employees must be paid in full within four business days or by the next regular payday, whichever is sooner. Employees who quit or resign must be paid in full no later than the next regular payday unless the employee gives a full pay period’s written notice that he or she intends to quit, in which case his or her wages must be paid in full at the time the employee quits. These provisions may not be set aside by a private agreement. However, if the employer and the employee enter into a valid wage assignment, which has very specific requirements, then they may agree to withhold from the employee’s final pay an amount representing the unreturned property.

There are other options for employers.  When the employment relationship ends, the employer may try sending a letter by certified mail to the former employee requesting the return of the employer’s property.  The employer can also send an invoice to the former employee for the cost of the property.  If the employee does not voluntarily pay the amount listed on the invoice or return the uniform or other property, the employer is relegated to bringing an action in magistrate court (if the property is worth less than $5,000) or circuit court (if the property is worth $5,000 or more).  Take note: employers withholding pay for property without a proper wage assignment will find themselves in circuit court but on the receiving end of a lawsuit they can’t win

Kaite Robidoux focuses her practice in the area of labor and employment law.
 
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