Can an employer withhold my last paycheck until I fill out paperwork?

UPDATED: Oct 1, 2022

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Can an employer withhold my last paycheck until I fill out paperwork?

I was hired for an hourly retail job about a month ago. The owner is very

disorganized and never had me fill out a W-4 form before I was given a schedule and worked. I was paid by check for my first 2 weeks and no deductions were taken out. I’ve since quit this job disorganization is not the only issue here, returned their uniform, and am now owed pay for the next pay period that I worked. I went to the store to pick up my check a few days after payday but it wasn’t there, so I asked the owner’s assistant to mail it and they agreed to do so. New Link Destination
day, I received a voicemail telling me to come to the store and fill out a W-9 in order to pick up the check. I was clearly an employee with a set schedule, specific duties and paid by the hour at the minimum wage. I do not qualify to be an independent contractor. Under these circumstances, can the owner withhold my paycheck for any reason? If I tell him I won’t fill out a W-9 because it should be a W-4, can they refuse to give me my paycheck until the correct form is filled out? Also, if I do fill out a W-4 and it is dated a month after I

was hired and basically after the fact of having received paychecks, how does

that affect the payments I received before filling out the W-4? Will I be in trouble with the IRS for accepting payments without having filled in any forms first?

Asked on October 17, 2018 under Employment Labor Law, New York


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

No, they may not withhold you last paycheck. They must pay you on time (no later than when you would have been paid--i.e. had your next payday--had you not quit), and they must pay you the same way (on the same basis; i.e. the same withholding, or no withholding) as they had been paying. If they will not pay you, you could sue them for the money.
That said, it may be easier and quicker to fill out the form to get the money. At the end of the day, it does not make alot of difference in your taxes: whether it's withheld up front, or paid by you at tax time, you total taxes are a function of your total income; the main difference between having taxes withheld as an employee vs. not withheld as a contractor is the timing of tax payment. (There are some differences at the margins, regarding the employer portion of social security, etc. withholding vs. the "self employment" tax, but if you only worked there a month or less, in total dollars, the difference will be small.) You may to consider complying as the easiest way to get your money.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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