It’s not uncommon for employers to stiff a terminated employee or at least delay the final paycheck as long as possible. Your help in getting that money for your client could be invaluable and may not take you much time at all.

Most employees separated from a job in Louisiana have a right to prompt payment of “the amount then due under the terms of the employment.”1  Not all workers are covered. Because the statute excludes independent contractors, remember the possibility of misclassification. The law applies to public as well as private employers, but it does not apply to those covered by collective bargaining agreements that provide otherwise. The statute requires that the pay period have been by the “hour, day, week or month” and does not cover pay arrangements lacking such a term. Not all payments are covered; one critical exception is that employer policies may exclude vacation pay. The reason for separation and the workers’ immigration status are immaterial. Payment is due within 15 days or on the next regular payday, whichever comes first.

• 1La. R.S. 23:631, et seq.

You might be able to get your client paid quickly by contacting the employer. Your client may have a manager’s phone number, or you might find a phone number on the internet. Even if the employer refuses to pay, a conversation may provide valuable information for your next step. If calling doesn’t work, put your demand in writing. While in rare circumstances a court might find an oral demand sufficient, it is best to have proof of your demand in writing whenever possible. Most employers will refuse to sign any receipt for your demand, so use whatever other means you have to prove delivery; text, e-mail, or fax is best for purposes of immediacy and proof of delivery. Sufficient demand is necessary to invoke the enforcement and penalty provisions of the statute. If you get no or unsatisfactory response, the final step is to sue in court.

A suit must be filed within 3 years.1  Venue is appropriate in any of the locations authorized by the Code of Civil Procedure and also in the parish where the work was performed.2  If wages were paid but not paid timely, a suit seeking only penalties and attorney fees still states a cause of action. The employer must pay the employee’s reasonable attorney fees if the suit is “well-founded,” which means that a judgment awarding past due wages has been entered in favor of the employee.

The law allows penalties of 90 days’ wages or full wages from demand until payment, whichever is less, to be assessed against an employer who fails or refuses on demand to pay all undisputed amounts.

• 1La. C.C. art. 3494.
• 2La. R.S. 23:639.

Good faith defenses by an employer will preclude imposition of penalties. The statute is strictly construed, being penal in nature, and its provisions may yield to equitable defenses.1  An employer who shows an equitable defense may avoid penalties, but not attorney fees, if wages are actually due.

Defenses to payment have included:

◦           Prior overpayments that could be offset against wages due

◦           Property loss or damage2

◦           Pre-employment medical exam or drug test costs for an employee who resigns within 90 days of hiring3

Defenses to penalties have included:

◦           Inability to locate an employee

◦           Good faith error (e.g., a true clerical error)

◦           Bona fide dispute about the amount due

◦           Perceived or actual need to offset amounts due from employee

◦           Employment did not end in resignation or termination

Rejected defenses have included:

◦           Poor bookkeeping practices or other negligence

◦           Employee’s abrupt resignation

◦           Employee’s refusal to pick up the check when the employee requested that it be mailed

◦           Employee’s failure to complete tax forms or to sign receipt acknowledging payment

◦           Reliance on unlawful company policy

◦           Reliance on legal advice

◦           Reliance on an illegal post-termination contract to avoid statutory obligations

• 1Boudreaux v. Hamilton Med. Grp., Inc., 94-0879 (La. 10/17/93), 644 So. 2d 619.
• 2While La. R.S. 23:635 prohibits an employer from deducting “fines” from wages (e.g., for violating a work rule), this statute does not prevent an employer from withholding wages for willful or negligent damage of employer property.
• 3La. R.S. 23:634(B).