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John, Employment Lawyer
Category: Employment Law
Satisfied Customers: 5568
Experience:  Exclusively practice labor and employment law.
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Theft of wages by false time sheets. employee reported

Customer Question

theft of wages by false time sheets. employee reported working in a clients home longer than actual time. The client was also charged for the wrong amount of time. Causing me as the employee to owe this client over $2000. Termination will be necessary but can I keep the employees last paycheck which will not even come close to the amount owed. This has been going on for 9 months. Can I press criminal charges and can I some how re coop the money
Submitted: 10 months ago.
Category: Employment Law
Expert:  John replied 10 months ago.

Hi, thanks for submitting your question today. My name is John. I have over 13 years of legal and consulting experience in this area. I’m happy to assist you with your question today. Please note that the website may ask you if you desire premium services, such as a phone call. I do not control these prompts, and you are not under any obligation to order premium services to get a full answer from me. If you do desire premium services, however, feel free to select that option. I will have an answer for you shortly, unless I require additional information. Please be patient as I may have to research some matters before providing a response.

Expert:  John replied 10 months ago.

Legally you cannot keep a check to satisfy an unintentional overpayment unless you have a dispute procedure in place. NY DOL regulations state "For deductions due to overpayments or advances, employers must develop and follow a dispute procedure by which the employee may dispute the overpayment or terms of recovery, seek a delay in the recovery of such overpayment, or dispute the amount and frequency of deductions for advances that are not in accordance with the terms of an authorization for such advance. Failure to follow the procedures set forth in the Regulations will create a presumption that the deduction is impermissible."

Thus, legally unless you have such dispute procedure in place, such deduction would not be allowed. If you do not have such a procedure, then you'd have to pay the last paycheck, then pursue the employee in civil court for the overpayment. You could try to just attempt to hold the last paycheck and see what the employee does (threaten them with criminal prosecution), but if they file a charge with the DOL I'd suggest paying it immediately because you will lose there and may owe a penalty as well.

You can theoretically file a police report for the overpayment, in most instances the prosecutor will not file a charge in these instance because they don't believe hey can show it is a matter of criminal intent (versus a business dispute). In most instances even the police will try to dissuade you from filing a report because they'll state it's a criminal matter.

Expert:  John replied 10 months ago.

I believe this answers your question. However, if you need clarification or have follow-up questions regarding this matter, I will be happy to continue our conversation – simply reply to this answer. If you are otherwise satisfied with my response, please leave a positive rating as it is the only way I am able to get credit for my answers. Thank you, ***** ***** wish you all the best with this matter.

Customer: replied 10 months ago.
thank you
Expert:  John replied 10 months ago.

You're welcome. Please leave a positive rating before you exit this chat as it is the only way I get credit for my answers. If you have any questions in the future regarding this matter come back to this thread and I'll be happy to answer. Thanks and good luck with the matter.