If I just fired an employee and she won’t return company property that she has in her possession, do I have the right to hold her last paycheck?

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If I just fired an employee and she won’t return company property that she has in her possession, do I have the right to hold her last paycheck?

Asked on July 29, 2015 under Employment Labor Law, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

No, you do not have the right to withhold her paycheck. Her obligation to return your property and your obligation to pay her for work done are separate and independent of each other, and a violation of one obligation does not legally justify or allow a violation of the other. More generally, employers are only ever able to withhold pay with employee consent or agreement (e.g. if she said "I know I owe you for the [insert property]; could you just keep my paycheck and we'll call it even?").

Your recourse is to sue her, including (depending on the amount at stake) in small claims court for the value of the property she took; the court could order her to either pay that value or return the property.

If you believe that she took it with criminal intent--i.e. not mistakenly believing that she had some right to it, or accidently keeping it and then being too busy to send it back, but deliberately taking your company's property when she knew she had no right to do so--you could also file a police report and look to press charges: taking another's property is theft, after all.


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