Can My Boss Withhold My Wages? Your Rights Under the KWPA.

The Kansas Wage Payment Act (KWPA) governs the payment of “wages,” which are “compensation for labor or services rendered by an employee, whether the amount is determined on a time, task, piece, commission, or other basis,” minus any authorized withholdings and deductions. Compensation determined on an “other basis” includes all compensation for services agreed upon by the employer and the employee, if the employee has met all the conditions required to be eligible for that compensation.

The KWPA applies to all employees regardless of status, i.e. an undocumented worker. However, the KWPA does not apply to independent contractors. To determine whether an individual is an employee or an independent contractor, look to the "economic reality test". Factors considered include: (1) the degree of control exerted by the alleged employer over the worker, (2) the worker's opportunity for profit or loss, (3) the worker's investment in the business, (4) the permanence of the working relationship, (5) the degree of skill required to perform the work, and (6) the extent to which the work is an integral part of the alleged employer's business.

Employers must pay their employees “all wages due” at least once each calendar month, on regular paydays designated in advance. The regular payday cannot be more than 15 days after the end of the pay period, unless a variance is authorized by state or federal law. When an employer discharges an employee or an employee quits or resigns, the employer must pay the employee's earned wages no later than the next regular payday the employee would have been paid if still employed.

With regard to vacation and sick time, once an employee has met the requirements for entitlement, eligibility, accrual or earning of non salary wages, then the employee has earned the wage and their right to those wages cannot be forfeited. Although an employer may impose a cut in wages if the change is announced before any wages are earned, in the case of non-salary wages such as vacation pay, they become wages when “the conditions required for entitlement, eligibility, accrual or earning have been met by the employee” and cannot later be forfeited by a policy change.

The KWPA provides for only three circumstances in which an employer may withhold, deduct, or divert an employee's wages:

1) When the employer is required or empowered to do so by state or federal law (such as withholdings for payroll taxes, garnishment, garnishment for support, or any reason authorized by the Act itself);

2) When the deductions are for medical, surgical, or hospital care or service, without financial benefit to the employer, and are openly, clearly, and in due course recorded in the employer's books; and

3) When the employer has a signed authorization from the employee for deductions for a lawful purpose “accruing to the benefit of the employee.”

The KWPA also specifies deductions that do not “accrue to the benefit of the employee” and cannot be made under any circumstances, even with the written consent of the employee. These include:

1) Deductions for cash and inventory shortages, breakage, returned checks or bad credit card sales, and losses resulting from burglaries, robberies, or alleged negligent acts;

2) Deductions for uniforms, special tools, or special equipment that are not necessary to the performance of the assigned duties and that are customarily supplied by the employer; and

3) Any other deduction not set out by the Act or permitted by the regulations.

An employer who fails to pay an employee's wages may be liable for four types of damages: Wages Due - The full amount of "wages" that are due; Penalty - A penalty up to amount of wages due can be imposed if there is evidence that the failure to pay the wages was willful; Interest - Interest to be determined from date wages are due and owing; and Attorneys fees - Attorneys fees may be assessed if the Secretary of Labor prevails on behalf of an employee, however attorneys fees are not available in private action under the KWPA.

Stephen D. Lanterman is an attorney licensed to practice in state and federal courts in Kansas, Missouri and Nebraska. He has experience assisting clients various employment law matters including wage issues, discrimination, retaliation and hostile work environment. If you have questions about this article, the KWPA, or other employment matters, call Steve at 785-357-6311.

The information and materials on this blog are provided for general informational purposes only and are not intended to be legal advice. The law changes frequently and varies from jurisdiction to jurisdiction. Being general in nature, the information and materials provided may not apply to any specific factual and/or legal set of circumstances. No attorney-client relationship is formed nor should any such relationship be implied. Nothing on this blog is intended to substitute for the advice of an attorney, especially an attorney licensed in your jurisdiction. If you require legal advice, please consult with a competent attorney licensed to practice in your jurisdiction.