Many states have laws that say when employers must give departing employees their final paychecks—and whether the paycheck must include unused vacation pay. Even in states without such laws, the federal Fair Labor Standards Act requires employers to issue an employee's final paycheck on or before the next regular payday. (29 U.S.C. §§ 201 and following (2019).) And if your employer has policies that are more generous than the law, the employer must follow those policies.
If you've quit or been fired from your job and your employer is withholding your final paycheck—or hasn't paid everything it owes—you should look up your state's final paycheck rules to determine when the check is due and what it should include. Don’t forget to research your employer's internal policies too—check the employee handbook or manual, or ask the human resources (HR) department for details. Understanding your company's obligations will help you determine when to contact your employer—and what to say.
In a handful of states, including California and Colorado, employers must give fired employees their final paychecks immediately. Most other states that have final paycheck rules require employers to issue final paychecks to fired workers by the next payday. (Companies usually get a little more time for employees who quit their jobs.) State laws vary as to whether unused vacation pay must be included in the final paycheck, and several states have special rules for workers in certain industries—for example, railroad or agricultural workers.
Employers might owe penalties to workers for issuing final paychecks too late. In California, the penalty is the employee's average daily wage for each day the employer is late, up to 30 days.
If you haven't received your final paycheck by the legal deadline, or if your check doesn't include required vacation pay, your first step should be to contact your former employer for an explanation. The company's payroll or HR department should be able to provide an answer; failing that, you can try to contact the office manager or your former supervisor.
The employer might explain that your check wasn't issued due to a clerical error or that it was lost in the mail. Or, the company was waiting to issue the check until you returned company property, such as a uniform. (In this situation, withholding your entire paycheck typically isn't legal, although some states allow companies to make deductions from your final paycheck for unreturned company property and other items.)
Whatever your employer's reason, make sure that you explain what the law and its own policies require, and be clear that you're prepared to take legal action if you don't receive what you're owed.
If your former employer refuses to comply with the law, consider hiring an employment lawyer to send a "demand letter" seeking prompt payment of your unpaid wages. The demand letter should outline the amount of wages you're owed and the legal basis for your claim. Demand letters are often successful because they demonstrate to employers that you're intent on enforcing your rights. They can also be a relatively low-cost option—employment lawyers will often bill you for no more than a few hours of work to write one, though sometimes they will need to do more work. Make sure that you understand the fees involved prior to hiring a lawyer.
Sometimes you have no choice but to take legal action against your employer for unpaid wages. In many states, employees can file claims for unpaid wages either with the state's department of labor or in court. You can also file claims for unpaid wages with the U.S. Department of Labor's Wage and Hour Division. If you choose to file a lawsuit and your claim is worth less than a certain amount, usually between $5,000 and $10,000, you'll probably be required to file in small claims court. In most states, you're allowed to hire a lawyer to represent you in small claims court, but doing so might not be cost-effective.
An employment lawyer can advise you on which option to pursue, the procedures and deadlines that apply, and whether hiring a lawyer to represent you makes sense financially.
