Can an employer keep my last check to make up for what ive stolen from their profits?

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Can an employer keep my last check to make up for what ive stolen from their profits?

I worked at a Dunkin Donuts, and someone
told me that I could cancel items at the drive
thru and put the money in the tip cup. There
was at least five of us doing it, and one day my
boss called me in her office and fired me on the
spot for stealing profits for tips. Its been a week
and i still havent gotten my check. Can she
keep it to make up for what was stolen? She
said she wasnt going to call the police or file
charges

Asked on July 5, 2018 under Employment Labor Law, Massachusetts

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

Legally, the boss cannot due this: the law only allows an employer to withhould employee pay, including a final paycheck, when the employee consents (agrees) or there is a court order (such as for wage garnishment). Even when the employee owes the employer money, they can't simply withhold pay--they should sue you for it. So this would be illegal and in theory, youl could sue for the money.
That said, you may wish to let it go:
1) If you sue for your pay--and that's the only way to get the pay if the employer will not voluntarly provide it--they could countersue you for the money they believe you took. Depending on how much that was, you might not come out much ahead, or could even come out behind.
2) What you did IS stealing--it doesn't matter if someone told you that you could to it; that is not a defense or make what you did legal. They could look to press charges against you. If you are not, you may wish to not stir matters up and make them rethink their decision to not press charges.


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