Q:  One of our employees gave us his two-week notice, then he worked for a few days and then he disappeared. We have been unable to reach him and he still has a company-issued cell phone he must return.  My question is, can we hold his last paycheck until he returns the cell phone to us?

A:  Sooner or later, all businesses have to deal with this sort of situation in one form or other.  The departing employee is not returning property (like your case), or owes the company money, or made unauthorized purchases with a credit card -you name it- and, the employer has a final paycheck that they hope may provide some leverage for the employee to do the right thing.

But you DO have to proceed with caution because federal law is clear that employers may not withhold wages, and simply sitting on a check and waiting for him to show up adds up to withholding wages.  So here are a few other things to try.

First, you can stop direct deposit and instead print a paper check which you should have ready to go in the event he shows up and returns the cell phone.  Because you can’t reach him by phone or email, you should also send a certified letter to the last known address urging him to show up.  Don’t use terms like “we are holding you paycheck until you return the cell phone” instead, say something like “your paycheck is ready for you to pick up as you return the company cell phone.”

If none of this works and he is still a no-show, does that mean you can keep the paycheck since he took the cell phone?  Nope.  You must still pay wages owed.  However, you may be able to deduct the cost of the phone as long as the remaining amount is at least the equivalent of hours worked at minimum wage.  For example, if he worked 26 hours at $20/hr, his normal check would be $520.  You could deduct $200 for the cell phone and still pay him $320 which is a few dollars more ($12.30/hr) than the $8.05 minimum wage in Florida, and comply with the law.

Lastly, if you send the $320 check via certified mail to the last known address, you should be in the clear.

Not intended as legal advice.

© Copyright Eva Del Rio

 Eva Del Rio is a human resources consultant, columnist and creator of HR Box™ – tools for small businesses and startups. Send questions to Eva@evadelrio.com