Dear Advice Guy,
An employee threatened to coworkers that she would upset shelves of food in the walk-in and ruin all the stock before her last day on the basis that she can’t be charged for it. Is this true or can the employer deduct expenses for the intentional loss from the employee’s last paycheck?
– Jennifer, Kitchen Manager, Audreys, Buckhannon, West Virginia
There are two separate issues you are asking about: whether an employer can withhold an employee’s final check for intentional damage or negligence done during the final pay period and what to do if an employee threatens to sabotage things or willfully causes damage.
In most states, these would be treated as two separate issues:
- The employee should be paid for all hours worked. For example, in your state: “West Virginia Code 21-5-4 provides that: "An employer must pay an employee who quits or resigns all wages due at the time of quitting if the employee has given at least one pay period's notice of an intent to quit. If the employee has not given at least one pay period's notice, the employer must pay the employee by the next regular payday."
- If the employee completes willful damage to the property by contaminating or disposing of product, stealing, vandalizing property, or something similar, it should be handled as a separate issue following the usual criminal or civil procedures.
For example, let’s imagine (which I’ve seen), a disgruntled employee walks out of work, and throws a lit cigarette in the dumpster, lighting it on fire as a parting act. As painful and illogical as it seems, the employee would typically be entitled to his or her final check for the hours worked—to withhold it could bring a separate wage and hour complaint and possibly additional fees. However, the police should also be notified and the employer could press charges and seek damages.
It sounds, however, that the issue you have is a cultural one—if an employee is threatening to cause damage to the property, you should not wait to see if it happens, but follow your procedures to immediately terminate employment.
As often happens with employment law, laws vary by state. Some states do allow for deductions to pay for employee damage or if the employee agrees to that potential deduction as a condition of employment, but those rules are often at odds with the requirement that employers provide a final paycheck so it gets tricky.
As always, it is best to consult an attorney and your restaurant association to get guidance for a specific situation.
More on the final paycheck here.