What to do if my former employer is refusing to send me my final paycheck?

UPDATED: Sep 30, 2022

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What to do if my former employer is refusing to send me my final paycheck?

My former employer is refusing to give me my last paycheck on the grounds that

Asked on April 17, 2016 under Employment Labor Law, Wisconsin


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

1) Any employee can be paid on a salaried basis, so the same salary is received regardless of weekly hours.
2) HOWEVER, it is possible to get overtime while receiving a salary, if you are not also "exempt" from overtime. To be exempt, you must be salaried *and* you must also make a certain minimum annual amount *and* your job duties, responsibilities, and authority/discretion must meet one or more of the test for exemption. You can find these tests and the minimum salaried threshhold on the U.S. Department of Labor website--take a close look at the "administrative employee" exemption, since that is probably the more relevant for you.
If you are not exempt, then if you work more than 40 hours in a week, you get a premium payment (overtime) for all hours past 40. To figure it out, divide your weekly salary by 40: that is your base hourly equivalent. The premium is equal to 50% of that, and you get it for each hour over 40 you work that week.
3) If you were salaried, he can't withhold pay because you "owed hours." Furthermore, no employer may withhold pay without either a) employee consent (such as withholding amounts for insurance premiums) or b) as required by law (such as for tax withholding or court-ordered wage garnishment). 
d on what you write, you seem to at least have a claim against your former employer for the last paycheck; you may have an overtime claim, too, for the weeks you should have earned overtime, if you do not meet the criteria to be exempt. You should contact your state department of labor to discuss.

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 AttorneyPages.com 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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