employee refused to turn in final time card

[Todd T]

What is the name of your state? IL

we are a small trucking company. our driver voluntarily terminated his employment with us on 2/15/08

today is his next scheduled pay period and we legally have to issue his final check. we still have not recieved driver logs to verify the trips and miles he traveled. can I legally just issue him a final check today, for minimum wage based on the FMSCA Hours of Service (HOS) rule for the two week period he is missing logs and not owe him the remaining wages over that rate?

its my understanding I will be breaking FLSA requirements if I miss this (final) pay period. however without those required records I cannot verify he worked what he worked (miles) aside from the bills of lading for the deliveries he made during that period. He is supposed to be paid percentage of gross which is substantially more than min. wage.

Here is what I prepared and would like to include with his final check:

As of scheduled (final) pay period 2/22/08 Driver XXX failed to meet agreed upon (signature on file) CFR49-395 requirements for driver daily logs; unable to verify driver records for pay periods 2/9/08-2/22/08.

Final check issued based on FMSCA Hours of Service (HOS) rule as prescribed in CFR49-395 as follows:

2/9-2/15/08 70 hours@$7.50 per hour.

2/16-2/22/08 70 hours@$7.50 per hour.

Would this stick or slide down the wall?

 

[xylene]

What is the name of your state? IL

we are a small trucking company. our driver voluntarily terminated his employment with us on 2/15/08

today is his next scheduled pay period and we legally have to issue his final check. we still have not recieved driver logs to verify the trips and miles he traveled. can I legally just issue him a final check today, for minimum wage based on the FMSCA Hours of Service (HOS) rule for the two week period he is missing logs and not owe him the remaining wages over that rate?

its my understanding I will be breaking the law if I miss this (final) pay period. however without those required records I cannot verify he worked what he worked (miles) aside from the bills of lading for the deliveries he made during that period. He is supposed to be paid percentage of gross which is substantially more than min. wage.

You cannot retroactively change pay rates. If the logs are not returned, you need a lawyer.

In fact, given the trouble this guy is, you might want to consult a lawyer anyway.

 

[Todd T]

Am I opening myself for damages if I dont issue a check today? Seems like a catch 22: I have no way to verify what he made without his logs but will be in violation if I dont pay him.

I will get a lawyer on Monday.

 

[Zigner]

Yes - get the lawyer. However, in order to show "good faith", you SHOULD issue the check for minimum wage (as you suggested). Make a memo on the check stating something along the lines of "Check issued at minimum wage due to no logs being turned in"

You WILL need to pay the rest once you get the logs though...

 

[Todd T]

Thanks again! I will do just that.

to set the record straight: I have always had every intention to pay him what he has earned, he just wont work with me to verify it so that I can.

 

[Todd T]

Just an update. I have a call into an attorney. I issued a check on our scheduled pay date last week for minimum wage and noted it was in good faith and we are still missing the required driver logs.

Just waiting for my attorney to adivse me on how to proceed from here. A previous attorney I used for an out of state matter advised me to do the best I can to calculate and pay him in full and sue for damages in small claims.

I also spoke with a man in Saftey from the FMCSA today and they said the driver has also left himself open for prosecution by not adhering to CFR 49 part 395.8 (drivers record of duty status).