What to do if ex-employer says they mailed paycheck but it has not been received?

[BMB87]

What is the name of your state (only U.S. law)? Texas

Hello,

My wife was recently fired from a job as a receptionist at a nail salon after only one week of working. In fact, she was let go in the highly unprofessional method of a text message to her phone. When she asked about her pay, the owner said the check would be mailed to her within a day or so. Here we are roughly three weeks later and still no check in the mail. She called her ex-employer to ask about the paycheck and was told that it was mailed out just as she was told previously. When my wife informed them that it had not been received, and also verified that the mailing address was correct, they started to give her the run around. She was told that they would need to contact the bank to verify or cancel the check which could take a couple days before they could get around to calling. My wife told them they needed to do it today. Then she was told that the stop payment fee for canceling the check would be deducted from her pay, which sound absolutely wrong to me since she did nothing wrong having provided them the correct address to mail to.

So, my question now is, what can we do? I told her that if they mailed her a check, I would think they would have their own copy of a pay stub with a date to show it was issued within 6 days of her last day of work according to Texas wage laws, although I have a feeling they did not do so in that time frame. Am I correct about this? It sound to me like they are implying she is being paid with a personal check from a check book, in which case a pay stub would not have been created with the check perhaps? Is this legal to pay business employees with personal checks and should they have a pay stub they can provide to her? Finally, if they need to place a stop payment on the original check and issue a new check to her, is it legal for her to be held responsible for the stop payment fee incurred?

I have never had any issue being paid by any of my employers throughout my life, so I am new to this and know only what I could find online. If we have to I will file a complaint with the Texas Workforce Commission, however it seems like that could take some time to get her paid by that route and will only use that as a last resort if they refuse to pay her.

Thank you in advance for any help provided.

 

[cbg]

If we have to I will file a complaint with the Texas Workforce Commission

YOU do not do anything at all. The only one with any standing to file with the TWC is your wife.

That being said:

They are not contacting the bank to see if/when the check was cut. They are contacting the bank to see if/when the check was cashed. You could be lying about not receiving it, or the check could have gone astray, stolen, and cashed by someone else. They are not obligated to drop everything and do everything on your time table, and they are correct that it can take time to get an answer from the bank. Some banks refuse to stop payment on a check prior to x days, which could be a couple of weeks in. I don't know where you're getting from this that the payment was with a personal check, although even if it is there's nothing illegal about that as long as they take all the appropriate taxes and provided the appropriate pay stub. It is quite unlikely that they have a copy of the stub - payroll checks rarely do. They will have a copy of the information on the stub, but not of the stub itself.

Yes, it is legal to charge her for the stop payment. Particularly if you refuse to allow them to investigate and demand that they stop payment NOW.

 

[BMB87]

Right, she would be the one filing the complaint. I say we and I because, with her being an immigrant to this country and not familiar with how things work, I am obviously going to be heavily involved. But it would be my wifes name on the complaint and any other related items. Being married, we are a WE.

My issue is not with them checking with the bank, rather they make it sound like they will get to it when they want. If the bank takes a couple days then that is fine with me. As far as the pay stub is concerned, All I meant is that they should have some record to prove that the paycheck went out within the 6 days of her last day of work as the law states that it should. They should have something to show us to prove the check exists, correct? I am not in HR so I do not know the terminology but this seems logical to me.

By saying that they are not obligated to do everything on my time table are you saying that they can take as long as they want to handle this? Months? Years? She has been contacting them for weeks now regarding the issue. One of the other managers even told her on the phone not to expect to be paid at all. The whole business seems very shady to me.

Also, how is it her fault that the check is "lost in the mail" and therefore able to be charged the fee for stop payment if she did nothing wrong? They have the correct home address for her as she provided on all documents to them pertaining to her employment and they even verified that it was correct just today. Do they need to prove that the check was mailed in the first place to charge her the fee? What if they never sent the check at all and are only claiming it was lost in the mail? They could do that repeatedly then and charge her the fee every time until she is owed nothing?

I guess at the end of the day, what i need to know is, are they obligated/required to show proof that the check was in fact actually mailed out? If so, what would that proof be? What are reasonable expectations for us in this situation?

 

[cbg]

No, they are not obligated to show you any kind of proof that they mailed the check. Not at this time. If at some point your wife files a complaint with the TWC, they will need to show such proof to the TWC. But not to your wife, and most certainly not to you.

No one said it was your wife's fault that the check was lost. But if the employer is telling the truth, and there really isn't any reason to believe they're not, it wasn't their fault either. They are allowed to charge her the fee for a stop payment because the law does not say they can't. She will probably have to sign something giving her permission for them to do so, but if their records show that a check in the correct amount was mailed and that it was mailed within the proper time frame, they are not obligated to take any further action. It's no skin off their nose if a check goes uncashed. It is solely for the benefit of your wife that a stop payment is issued; it doesn't benefit them at all. So tell me again why they should pay the fee?

 

[BMB87]

My answer would be that they should be held responsible because she requested to pick up the check in person the day after she was fired and they insisted on mailing it. Their choice, their responsibility. Though I suppose this is not necessarily a sound legal argument.

Regardless of the stop payment, after hearing the things they have said and seeing the way the owner has been acting, it is my belief, though at this time unsupported by direct evidence, that they simply hired her to fill the vacant position until they could find someone better and never had any intention of paying her. She was fired for no reason that we know of, and very soon after starting, which to me alone seems fishy although not illegal or unheard of. Then my wife was told by one of the managers that the owner probably wasnt going to pay her at all, and then the magically missing check in the mail, all lends itself to my theory. I was hoping we could have some sort of recourse without filing a complaint, however, if everything you have told me holds true, it sounds like that may be the only good option we have left. I will tell my wife to communicate this to the employer, and make our intent to file the complaint known, if she does not receive payment shortly.

I hope I am wrong about their intentions and that all of this can be resolved quickly, but I am beginning to doubt that more and more. I appreciate your assistance with the matter and the knowledge you have shared.

 

[cbg]

Filing a complaint with the TWC might really be the only option she has if the check doesn't show up soon.

I'm not denying that there are employers who deliberately opt not to pay people. Those employers, though, don't generally tend to get into detailed discussions about stop payments and so on, though, so in this specific case I'm inclined to believe that a payment was made. I could be wrong - it's happened before, and no doubt will again. But my gut response is that their reactions ring true - at at least, as much ringing as I can hear second and third hand.

FYI, it is possible that they DID hire her to fill a vacancy temporarily. That's not illegal. Maybe not the best management I've ever heard of, and I'm not going to say it's playing fair to your wife. But it IS legal and does not necessarily imply an intent not to pay.

But if this has been going on for three weeks and the check has not appeared, a complaint to the TWC may be her best bet.

 

[Kingstien]

Copied directly from Texas Payday Laws:
1. "If an employee is laid off, discharged, fired, or otherwise involuntarily separated from employment, the final pay is due within six (6) calendar days of discharge."

2. "Wages must be delivered to the employee at their regular place of work during working hours, mailed by registered mail or by direct deposit to be received by the employee not later than payday, or to any person authorized in writing by the employee."

They were required to pay her within 6 days.
As for what they claim they sent: By law it had to be sent registered mail, which means the post office records it's movement and delivery through the postal system.
If they failed to abide by the law and refused to make her full pay available to her within the 6 day limit the they are going to end up paying her double.
She does NOT have to pay for canceled checks.

 

[cbg]

IF they mailed the check within the six days and can prove it, that satisfies the law.

Again, I am not saying that for sure they DID. I am saying that the details provided by the OP sound believable in my experience.

 

[Kingstien]

IF they mailed the check within the six days and can prove it, that satisfies the law.

Again, I am not saying that for sure they DID. I am saying that the details provided by the OP sound believable in my experience.

Texas is very clear about what is required proof of mailing paychecks.

 

[cbg]

No one said otherwise. I said IF.

 

[Kingstien]

No one said otherwise. I said IF.

I understand, but because the penalties are so high (even if it was a simple employee error), Texas won't allow argument about the mailing. They either have the postmaster tracking or they don't.

 

[cbg]

And neither you, nor I, nor the OP, knows if this is the case. The employer isn't going to tell him what they're doing or on what timetable - it's not his paycheck.

 

[Kingstien]

And neither you, nor I, nor the OP, knows if this is the case. The employer isn't going to tell him what they're doing or on what timetable - it's not his paycheck.

Funny, From the info provided and Texas Law quoted; The owner claimed that they would have to contact the bank and cancel the check in stead of checking the tracking of the so called mailed check. I thought you had noticed that and was just pulling my leg.
Stay out of the snow...

 

[cbg]

One more time.

It is not the OP's paycheck. He has no entitlement to information about what the employer is doing. And they WILL have to contact the bank, EVEN IF it is also being tracked through the post office. That they did not spell out every step to someone who has no entitlement to any information at all, is not proof of what they are or are not doing.

 

[Kingstien]

The employer had 6 days to deliver the OPs wife her ENTIRE owed pay but failed. It's been 3 weeks and you're even stating that his wife is now responsible for for the employers extra banks fees.
Texas employee pay laws are very strict, but you seem to make up your own laws and regulations on the fly.
Well good for you,