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TexLaw
TexLaw, Lawyer
Category: Employment Law
Satisfied Customers: 4430
Experience:  Contracts, Wrongful termination and discrimination
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My employer terminated my employment for performance (no misconduct)

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My employer terminated my employment for performance (no misconduct) and my last check was not direct deposit but a live check instead and my employer didn't mail my check in time for me to have access to my paycheck on the same day that it would have hit my bank if it was direct deposit which should have been 9/12 and still not received in the mail on 9/13 either.

I notified my employer HR dept that I was going to seek out a payday loan and I wasn't going to be seeking pre-authorization from them before getting the loan. I explained to them that any check not deposited today, the funds from that deposited check would not be available until the following Tuesday 9/17 as I contacted my bank to find out when will any funds be available on my account if deposited after today and that was the response I got. HR offered to cut another check on Monday 9/16, but I should have had my check before 9/12 so I could have had access to my funds on 9/12 like everyone else.

What recourse do I have in rectifying this situation and whether I have to take any legal action to recoup for pain and suffering. I'm also at a loss here for wasting my time for getting this problem rectified and bills have to be covered before taking my account negative...are they liable for the overdrafts as well?
Hi,

My name is XXXXX XXXXX I will be assisting you with your legal question.


First, you cannot recover pain and suffering for late payment claims. This is just not a element of damages you can recover under the law on claims like these.

Second, can you please tell me on what date you were terminated?
Customer: replied 3 years ago.

Term date was 9/6. But you didn't answer whether they would be liable for payday loan fees???

Thanks for your response.

This late payment does in fact violate the Texas Payday Act, which has criminal penalties. They should have guaranteed that the check get to you within 6 days of your termination date.

However, there is no right under the law to assert that they are liable for the payday loan fees or overdraft fees.

What you could do is tell them that you intend on notifying the Texas Workforce Commission that they have violated the Texas Payday Act by failing to pay you on time, but that you will release your complaint if they reimburse you for the payday loan fees and overdraft fees. They do not have to comply, but it is a carrot you dangle in front of them to get them to cooperate with you.
Customer: replied 3 years ago.

Today is day 7 since term date but my check should have been direct deposited yesterday 6/12. They sent me the check stub online and payroll mgr mailed check yesterday afternoon. Why shouldn't they be liable for delaying my pay when stub was available tuesday?

I understand your frustration. It's my job to tell you what the law is, and the law does not always seem fair. It does not seem fair to me either, and the law should be amended to take into account the reality of many wage earners living pay check to pay check.

The best way I can explain it, and I do this with all respect, is that the law only requires that you be paid on time. It does not make the employer responsible for what happens if you have other obligations to use the money. It also does not take into consideration the fact that you may not have any money in your checking account and have automatic payments scheduled. This is something that is your sole responsibility.

The exact reason for this is called Proximate Causation. When there is a breach of duty, the damages asserted must be proximately caused by the wrong. Here, the wrong is both a breach of contract and a violation of the statute. So in this case, the damages are the actual payment, not the fact that you have not been paid. The law says you must be paid, and if you are not paid within 6 days of your termination, it is a crime. It does not say that if you are not paid, and then you cannot pay your bills, the the employer is responsible for that as well. This is because the employer only owed you your wages, it did not owe the money to the bill collectors, if you see my meaning, and again, I mean absolutely no disrespect.

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