Can my employer withhold my check for something that is missing if it assumes that I took it but it has no evidence?

UPDATED: Sep 29, 2022

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Can my employer withhold my check for something that is missing if it assumes that I took it but it has no evidence?

Also, is it OK to not pay overtime at the right rate?

Asked on August 16, 2015 under Employment Labor Law, Florida


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 7 years ago | Contributor

1) No, your employer may not withhold your paycheck for this reason. Employers may never withhold any pay except a) with employee consent (e.g. withholding some pay for health insurance or a 401k) or b) as specifically required by law (e.g. tax withholding; if there is wage garnishment order).

2) If you don't have an employment contract, you are an employee at will and your employer could fire, suspend, demote, etc. you if it thinks you took someting--even without evidence. That's because an employer needs no reason or justification to fire, etc. an employee at will.

3) If you are eligible for overtime (and all hourly workers are overtime eligible), you must be paid at the correct rate: i.e. you must get an extra 50% over your normal rate. Failure to do so is a violation of the Fair Labor Standards Act (FLSA) and you could file a complaint with the state or federal department of labor.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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