Withholding Last Paycheck for Unreturned IT Equipment

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Latest post 05-24-2012 11:53 PM by Drew. 16 replies.
  • 05-24-2012 1:30 PM

    Withholding Last Paycheck for Unreturned IT Equipment

    Hi - I'm hoping I can get some good advice here.  My company is located in Davie, FL (Ft. Lauderdale area).  I had an employee who I thought was going to be a long-term employee.  She was engaged to be married and was going to move up to Daytona where her fiance was.  The time of the wedding was approaching so I decided to set her "virtual" office up in Daytona.  So I bought a lot of computer equipment - router, switch, cables, power outlets, keyboard and a small desk.  Everything cost a little over $500.  Their engagement ended but all the equipment stayed there.  She was still employed with me and I sent a letter to her ex-fiance to have the items returned with no response.  He says he won't return the company property unless she returns the ring.  Well, this is my company property and has nothing to do with their personal situation.  She came in this last Monday to say she was quitting and going back to school.  No mention of the property was made.  So, what can I do????  I have not given her her final check.  Can I hold the check until I get my company property returned.  Being SHE was my employee and SHE was the one who put the company property in his place, isn't she responsible for it?  I can't go after him because I have no relationship with him.  Please advise.  I don't think I should give the last paycheck.  She needs to take responsibility for this.

    OK - Despite what I think - what is Florida Law say in this situation??

     

    Thanks - Carmen

     

  • 05-24-2012 1:37 PM In reply to

    Re: Withholding Last Paycheck for Unreturned IT Equipment

    A little too much extraneous detail given the topic.

    Not clear why you'd send a letter to an ex-fiance; it's the worker's responsibility to address.

    You're not free to withhold wages based on the unreturned property.  That's a separate matter.  While you CAN do what you please, you'd have to be prepared for her to file a wage claim with the nearest federal DOL wage-hour division office folks.

    Yes, she's responsible for the property; not sure why you'd think otherwise.  (Also not sure why you wouldn't have brought up the topic of the equipment when she said she was quitting, but you're free to mail her a letter (recommended) about it.)

    You're free to sue her for the value of the equipment if she refuses to return it. 

  • 05-24-2012 1:46 PM In reply to

    • LG81
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    Re: Withholding Last Paycheck for Unreturned IT Equipment

    Carmen BACM:

    OK - Despite what I think - what is Florida Law say in this situation??

    Florida does not have any statutes that address the timing of a final paycheck. 

    Carmen BACM:
    Being SHE was my employee and SHE was the one who put the company property in his place, isn't she responsible for it? 

    She is responsible for the equipment, so it is unclear why you sent the letter to the ex-fiance. 

  • 05-24-2012 1:51 PM In reply to

    Re: Withholding Last Paycheck for Unreturned IT Equipment

    She quit while I was on the phone with a customer so we weren't able to have a long conversation.  When she was still an employee I was helping her by writing the letter to him.  She thought it would make him return it being it was coming from me and not her.

    I guess I just want to know the law.  You said I'm not free to withhold her check based on unreturned property.  Is that Florida law?  I was reading one post that I could reduce her last check to minimum wage - is that true?

    Thanks!

  • 05-24-2012 1:54 PM In reply to

    • Drew
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    Re: Withholding Last Paycheck for Unreturned IT Equipment

    You are NOT on safe grounds to overtly refuse to pay her her last paycheck when the FL law says it is due.--how long you can deliberately obfuscate is beyond me.

    You are however free to demand she return your company property post haste . You are probably free to give her a clear reminder that you reserve the right to turn the matter over to law enforcement as a question of unlawful detainer/theft .

    And I'd put the demand into clear factual writing-list of equipment and its replacement cost. -just facts,  no threats or editorial comments.

    There are some technical questions about going too far with a direct threat of pay me or else I turn it over to law enforcement --that gets into area of extortion--in some states it is OK to make  threats so as to recover ones own property  but I'm not up on FL issues --so check before you go too far.  But you can let her see the light!

    Law enforcement probably doesn't care and won't act--but she may not know that!



  • 05-24-2012 1:54 PM In reply to

    • DPH
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    Re: Withholding Last Paycheck for Unreturned IT Equipment

    Carmen BACM:
    Everything cost a little over $500

    While you can't withold her final paycheck, what you can do is send her a letter gently reminding her that she is responsible for XXX (include a detailed inventory) and needs to return it as soon as possible as you will need to redeploy said equipment to her replacement.  When she contacts you, if she does, let her know that her paycheck is ready whenever she wants to get it and why not pick it up when she returns the equipment.  Don't mention anything about holding the paycheck and if she demands it give to her so you don't get in any trouble.  If she balks at returning the equipment, get the paperwork for small claims and send her another demand letter along with letting her know that you will be filing in small claims.  If she doesn't return the equipment, follow through with the SC action.  Collecting may be a problem, but you might get lucky.  Read up on FL SC actions and collection options and be prepared to go for it.

    You might get lucky and she'll return the equipment, but if she doesn't your best option would be SC.  Hiring an attorney and sueing would cost way more than the equipment is worth.  Good luck.

     

     

     

    "Never argue with stupid people, they will drag you down to their level and then beat you with experience."  -  Mark Twain

     

  • 05-24-2012 2:11 PM In reply to

    • Drew
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    Re: Withholding Last Paycheck for Unreturned IT Equipment

    While FL lacks a specific last paycheck type law  the federal rules might cover it in context of you must pay the next regular time --I'm simply not sure  .

    But I am sure you don't want to get both issues of slow paycheck and cough up my equipement  on same page or in same breath --keep them separate--she'll be able to read betwen the lines anyway.



  • 05-24-2012 2:12 PM In reply to

    • Kivi
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    Re: Withholding Last Paycheck for Unreturned IT Equipment

    FL does not have any law regulating the payment of that final paycheck. For the most part, FL has very few labor laws and no regulatory agency that enforces the few laws that might be on the books. If your former employee choose to do so, however, she probably could take you to small claims court for her final paycheck. I have no crystal ball as to how a FL judge would rule here.

    Where you might get into trouble is if you withhold ALL of her final paycheck. You could then trip over Federal minimum wage law, which is enforced by the U.S. Dept. of Labor, Wage and Hour Divsision. USDOL-WH, however, won't get involved if you pay at least minimum wages and there is no issue of you owing her overtime pay. Also, USDOL-WH won't get involved unless someone complians to it. 

    Of course, you also need to make any required deductions for FICA, income taxes, etc.

    I like DPH's suggestion but I suggest that you give her a deadline and if she fails to meet it, go to plan B. If she does NOT contact you and return the equipment, you probably could do what you suggest. Pay her minimum wages, withhold the rest (or the value of the unreturned equipment, if less that the total amount owed, less any required deductions, and hope she does not take you to small claims court.

     

  • 05-24-2012 2:15 PM In reply to

    • LG81
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    Re: Withholding Last Paycheck for Unreturned IT Equipment

    Carmen BACM:
    Is that Florida law? 

    Florida has no statutes regarding the timing of a final paycheck.  An accepted practice in states in which there is no specific statute is to pay an employee who quits on the next scheduled payday; however, there is no FL statute.

    However, the employee is free to report you to the Federal Wage and Hour Division if you withhold final pay.  She is also free to take you to Small Claims Court (SCC) if her claim is below the FL statutory limit.  Similarly, you can take her to SCC for the value of the unreturned property.

    Carmen BACM:
    I was reading one post that I could reduce her last check to minimum wage - is that true?

    No.  The FLSA indicates there is an implied contract regarding rates of pay, and one cannot reduce pay RETROACTIVELY.  You can do so proactively.  You can tell an employee that, from this moment forward, your pay is $7.67 per hour (FL's miniumum wage), but you cannot reduce the rate of pay for work already performed.

     

     

  • 05-24-2012 2:38 PM In reply to

    Re: Withholding Last Paycheck for Unreturned IT Equipment

    Bottom line, pay her.

    Then go after her for the value of the equipment.

     

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  • 05-24-2012 2:55 PM In reply to

    • Drew
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    Re: Withholding Last Paycheck for Unreturned IT Equipment

    I disagree--I'd fumble and frustrate finding the paycheck with my left hand  and jawbone and jesture with my right hand asto  needed my stuff back or a certified check for the gross amount in question . Once you find the paycheck  and she gets same and she disappears,  to get funds out of her via the small claims process and follow up collection is going to be daunting even if you win hands down.

    Question --how big is her last check vs the $500 equipremnt in question?



  • 05-24-2012 2:58 PM In reply to

    Re: Withholding Last Paycheck for Unreturned IT Equipment

    THANK YOU EVERYONE!!!  I really appreciate the quick replies of everyone. Very helpful and useful advice.

    Have a great day!

  • 05-24-2012 3:21 PM In reply to

    Re: Withholding Last Paycheck for Unreturned IT Equipment

    It would erase her check and still leave some she owed.  But I could forgive the difference probably.

  • 05-24-2012 9:21 PM In reply to

    • cbg
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    Re: Withholding Last Paycheck for Unreturned IT Equipment

    Okay, let's clarify a few things.

    Florida is one of the very few states that does not have a drop-dead date when you have to have released final pay for an employee. Common law says that it needs to be paid by the next regular pay date after her last day of work.

    Florida does not have a department of labor. Wage claims in Florida have to be handled either at the Federal level or in small claims court. However, she could file a wage claim under Federal law, or sue YOU for the wages, and she'd probably win. The return of company equipment and your paying her wages due are two separate issues under the law.

    If you were in South Dakota, you'd be fine. SD law specifically gives an employer permission to hold the final paycheck until all company equipment is returned. In any other state, you're on very shaky ground legally.

    To be on safer ground, pay her and sue her in small claims court. (And that is exactly the advice I gave my husband when he fired an employee for stealing from him.)

  • 05-24-2012 11:10 PM In reply to

    • LG81
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    Re: Withholding Last Paycheck for Unreturned IT Equipment

     As I stated before,

    Florida has no statutes regarding the timing of a final paycheck. An accepted practice in states in which there is no specific statute is to pay an employee who quits on the next scheduled payday; however, there is no FL statute.

    However, the employee is free to report you to the Federal Wage and Hour Division if you withhold final pay. She is also free to take you to Small Claims Court (SCC) if her claim is below the FL statutory limit. Similarly, you can take her to SCC for the value of the unreturned property.

    Carmen BACM:

    It would erase her check and still leave some she owed.  But I could forgive the difference probably.

    Why not offer her an agreement to do just this?  If she sues you in SCC for unpaid wages, that becomes a public record.  If she is awarded a judgement against you or your business, that can cause even more headahces.  You may want to consider weighing the benefits versus the costs of letting these matters go to court (her claim against you for wages and your claim against her for the personal property) and especially the time it will consume.  You may be better off with an agreement.

     

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