Legal Insider: An Employee’s Right to Final Paycheck

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Reston that specializes in federal employee, security clearance, retirement, and private sector employee matters.

by John Berry

Employees are entitled to all of their previously earned wages, even if they are terminated. However, for various reasons employers sometimes attempt to avoid paying the last paycheck to a former employee. The nonpayment of wages can cause significant hardship for an employee and can be a costly mistake for an employer. Fortunately, there are several laws and regulations that govern issues related to the nonpayment of wages.

An employer generally should pay an employee’s paycheck by the next pay period. Some state laws vary on this issue, but failure to make prompt payment can violate a number of wage and overtime laws such as the Fair Labor Standards Act (FLSA). The Virginia Code § 40.1-29 provides that final payments to a terminated employee should be made on or before the employee would have normally been paid had the employee not been terminated. The Virginia Code imposes civil and criminal penalties for nonpayment of wages by an employer. The Virginia Code further prohibits employers from deducting portions of a final payment without the former employee’s consent with the exception of standard taxes and withholdings.

States vary on the issue of whether an employee is entitled to receive accrued vacation or sick leave upon an employee’s departure. Virginia has taken the approach that fringe benefits such as vacation/annual/holiday leave, sick leave or severance pay are not required to be paid out by a former employer under the law. In addition, employers may establish any policy or no policy regarding fringe benefits at the termination of an employee.

If an employee in Virginia is confronted with nonpayment of final wage issues, the employee can contact the Virginia Department of Labor and Industry. The Virginia Department of Labor and Industry may assist an employee in obtaining payment of final wages after the employee files a complaint, but it does not handle claims for wages over the amount of $15,000. If the payment of lost wages also involves unpaid overtime, the United States Department of Labor, Wage and Hour Division may be contacted and an investigation may be initiated for FLSA overtime violations by the former employer. Additionally, the failure to pay both wages and overtime can be pursued in court.

We represent employees in federal employment matters nationwide, and private and public sector employees in employment matters in the Commonwealth of Virginia, Washington, D.C., and Maryland.  If you need assistance with an employment law issue, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.