Penalty for late check changes.

Byline: On the Job by Bureau of Labor & Industries For The Register-Guard

Q: I gave advance notice to my employer that I was resigning effective Jan. 10, but I didn't receive my final paycheck until the 18th, more than a full week later. Wasn't my employer supposed to pay me on my last day of work? Although my final paycheck only amounted to $200 or so, it was still a hardship to have to wait. A co-worker suggested I have the right to receive penalty wages. Is this true?

A: It's true that a court can award you penalties when your employer is late in paying your final wages. The method of calculating those penalties has changed as of Jan. 1, the effective date of a bill in during Oregon's 2001 legislative session.

The deadlines for final paychecks, set in ORS 652.140, have not changed. If your employer terminates you, your final paycheck is due by the end of the next business day. If you quit your job without giving 48 hours advance notice, your employer has five working days to make your check available, or until the next regular payday - whichever is earlier. However, when you quit with advance notice, as you did, your final paycheck is due on your last day of work.

So you're right that Jan. 10 was the day your employer should have had your final paycheck available, including any vacation pay or other compensation due to you under your wage agreement.

Prior to 2002, the final paycheck penalty statute, ORS 652.150, would have allowed a court to award you a full day's wages, calculated at eight hours a day at your regular hourly rate, for every day your employer was late, up to a maximum of 30 calendar days. In your case, that would mean you could receive eight days of penalty wages.

However, during Oregon's 2001 legislative session, the legislature passed HB 2867, a bill that amends ORS 652.150 and makes the 30-day penalty a conditional penalty that will only apply in certain situations.

The amended law states that the penalty for a late final paycheck may not exceed 100 percent of the employee's unpaid wages or compensation, unless the employer fails to pay the employee within 12 days after receiving written notice.

Now, therefore, the onus is on you, the employee, to make a written demand for your final wages when your employer is late. If the employer then doesn't pay you within 12 days, the penalty will be calculated under the rule that entitles you to up to 30 days of penalty wages. However, if your employer does pay within the 12-day period, the largest penalty a court could award would be the amount of the late wages - $200, in your case.

The newly amended law also states that the penalty may not exceed 100 percent of the unpaid wages if the employee fails to make a written demand.

If your employer is not a "first-time offender," however, you could still recover up to the full 30 days of penalties. The law says that the new "12-day" rule won't apply "when the employer has willfully violated" the final paycheck rules one or more times in the year before your separation from employment.

On The Job is written by attorney Dan Grinfas of the Oregon Bureau of Labor and Industries. The column answers questions about employment law. To contact BOLI, call [phone], or write to BOLI, 800 NE Oregon St. #32, Portland OR 97232.