Employee Obligation to Repay Wage Overpayments

When employees are overpaid for whatever reason, there is an employee obligation to repay wage overpayments if the employer demands it. An error doesn’t entitle someone to keep money they didn’t earn, but an employer is not allowed to take the money out of the employee’s paycheck without the employee’s permission.

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Dec 22, 2020

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There are times when an employer overpays an employee. This could be because of an accounting error, too many hours being recorded for the employee, or that he or she was paid at too high a rate. A sales person may have been given too large of a commission, or perhaps deductions for benefits were not accounted for properly. Whatever the reason, the employee is responsible for repaying the employer if it is demanded. An error does not entitle someone to keep money they did not earn.

After all, the employer-employee relationship is essentially a contractual one, even when there is no written contract. In exchange for doing X work for Y hours, the employee is paid Z dollars. In a contractual relationship, each party is entitled to what it gets under the contract, no more, no less. For example if the employee did work that would earn Z dollars, but is instead accidentally paid 1.3Z dollars, or 30% more, the employee has no entitlement or right to that extra money and must return it.

If this seems unfair consider: if your employer accidentally underpaid you, you would want them to make up the difference, wouldn’t you? And you’d have a right to make them do so. It’s the same concept: each party, the employer and the employee, is entitled to only that which it agreed to in offering or accepting the job.

However, the employer may not simply take the money out of the employee’s paycheck without the employee’s permission. Doing so will be a violation of various wage and hour laws which preclude an employer unilaterally withholding or deducting money (other than for FICA, of course). An employee could voluntarily choose to allow an employer to deduct money from a paycheck, but that has to be fully recorded or memorialized in written form to prevent any recriminations or misunderstandings. If the employee refuses to allow his or her employer to simply take the money out of the employee’s paycheck and doesn’t otherwise repay the money, the employer may be forced to sue him or her for its return. This is not the most cost-effective route, except in cases of the most egregious overpayments.

Always bear in mind, though, that with the exception of those under special contracts or union agreements, most employees are employed “at will”.

This means an employer could fire an employee who refuses to return an overpayment. Such termination would likely even be considered for cause, which could affect the employee’s right to unemployment insurance.  Therefore, employers do have leverage to get an employee to repay an overpayment of wages. The best option is to simply return the money if you find yourself in this situation.

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