In Employment Law

Employers failing to pay employees can cause massive problems. The employee might not be able to pay rent, bills, and other expenses, which can lead to evictions and massive personal disruption. 

Imagine a manager impulsively firing a hard working single mom. If the manager vindictively decides to withhold the mom’s final month of payment and refuses to pay bonuses owed, then the mom may be evicted, her car may be repossessed, and she may even find it difficult to pay for food. Without a home and transportation, it might be nearly impossible to find a new job. Fortunately, South Carolina aggressively protects workers from this type of retaliation. 

If an employer fails to pay an employee, the employer could be forced to pay three times the amount of wages they withheld and pay for the employee’s attorney fees. The South Carolina Payment of Wages Act makes clear that payment of all wages owed must be paid unless there is a legitimate dispute over those wages. If the employer fails to quickly pay the employee, the employer may be ordered to pay treble damages. To make a claim, the employee must file a legal action against the employer for breach of contract and restitution.

If your employer has wrongfully withheld wages an employee can sue in either Small Claims court or the Court of Common Pleas. Claims less than $7,500 generally fall under the jurisdiction of the Small Claims Court and those over $7,500 must be filed in the Court of Common Pleas. There is a fee for filing and a process for making sure it’s handled correctly. 

To complicate matters, employers sometimes claim employees are “independent contracts” even when they are actually employees. The distinction is more than a label and the analysis goes beyond tax filings. In South Carolina, courts apply a four point test to determine if an employee is an independent contractor. The considerations are these:

  1. did the employer exercise control over the employees work?
  2. how was the employee paid?
  3. did the employer provide supplies for the employee’s work?
  4. did the employer have the ability to fire the employee?

Determining if a worker is an employee or an independent contractor requires an understanding of how the court applies this basic four point test. 

If you or someone you know has been wrongfully terminated and had wages withheld, call Wesley Henderson who has 15 years of experience in representing both businesses and individuals as an employment attorney. If you own a business and need advice on how to handle employee termination, call Henderson & Henderson law firm in Charleston SC, we are happy to help your company successfully navigate South Carolina’s employment laws.


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