Wednesday, June 5, 2013

Can I Mail An Employee's Final Check To His Home?

This is a question I often hear.  An employee quits and instructs you just to mail the final check.  The employer does so, and may even send it by registered or certified mail.  The letter may not be received for a few days, or the letter sits at the post office waiting for the person to sign for it.  And suddenly the employer finds itself at the Labor Commissioner office facing a claim for waiting period penalties. 

Labor Code section 208 requires an employee, even a quitting employee, to return to the workplace for final payment.  However, Labor Code section 202(a) permits an employee to receive payment by mail if (s)he requests it and designates a mailing address. 

Still several issues can arise.  First, how does the employer confirm that payment was requested by mail?  Usually, the employer does not ask the departing employee to put it in writing.  The DLSE takes the position that the employer must prove the employee asked for the check by mail.  In addition, according to Villafuerte v. Inter-Con Security Systems, Inc. (2002) 98 Cal.App.4th Supp. 45, the employer must also prove that the employee received the check.  Thus, the Deputy Labor Commissioner ruled against one of my clients when it was shown that the check sat at the post office for multiple days waiting for the employee to come and sign for it. 

So what is an employer to do?  If the employee quits without giving notice, tell the employee his/her check will be available on a certain day and time (within 72 hours).  If (s)he says, "Just mail it to me," tell him/her you can't without written instructions.  Then mail it and hope (s)he receives it.  Better yet, send a courier to the address.  Otherwise, make the employee return for the check. 

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