What to do if my husband has not received his pay for the end of last month?

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What to do if my husband has not received his pay for the end of last month?

He was told not to file unemployment. However, after several weeks of no work he did file. Owner won’t answer calls. He was an hourly employee. Several employees have not been paid. Company is folding. I assume they can’t file bankruptcy as they had done so a year ago. File small claims? Police report for theft of services?

Asked on February 21, 2012 under Employment Labor Law, Texas

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

Unfortunately, while this "feels" like theft, it almost certainly is not. Criminal liability depends on a criminal state of mind or intention, called "mens rea." If the employer from the very beginning intended to defraud employees by not paying them, that could be a crime; but if employees previously were paid, then the company became unable to pay, that is not a criminal act, since there would be none of the requisite criminal intent.

Your husband may and should sue for the money he is owed. Small claims court is a good place to do this, since costs are minimal and cases tend to move faster. If the company was not a limited liability company (LLC) or corporation, he can and should name the owners individually as well as the company; but if the company was an LLC or corporation, he may only sue the business.

If the company is shut down, has no money, and/or files bankruptcy, he may not be paid; therefore, if you're going to sue, do it now, before these things happen, which will increase the odds of recovering compensation.


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