Employer withholds last paycheck in Virginia

Question

I signed my exit interview form that stated I gave back my property that I had from the company during my employ and that I was receiving my last paycheck. The employer only put the check number on my exit interview form and did not put the check amount and I believe that was bait and switch to be able to change the check amount that they would give me if I didn't sign the nondisclosure Agreement.

After I signed the exit interview form they did not give me my check. They said, "In consideration for those, meaning my checks, I had to sign the nondisclosure agreement."

Is that considered extortion or is it illegal? I know in the state of Virginia it's illegal to withhold someone's paycheck but did they commit a crime of extortion or any other crime when they told me I had to do something to get what was rightfully mine? I have them on tape saying what I just disclosed to you.

ADDED....Also the employer in the general release form they offered to forgo let's say $2,000 worth of vacation time for me to sign the release form. This mirrors the characteristics of a severance agreement. At the time that they presented that general release to me I was over 50 years old which would have given me certain rights and they would have had to do certain things that they did not do. For instance for older adults being offered a severance agreement they would have had to have given me 7, or 21 days or something to the resend it if I wanted to. I would have had to have been told to consult with a lawyer before I signed it and I think I should have been given time to look it over like seven days or something like that by law. But they called it a general release not a severance pay agreement or a severance agreement.

My question is just because they called it a general release does that not make it a severance agreement? When I pulled up severance agreement form or template it was exactly the same as this general release so in my view they should have treated me and the general release form with the rules that govern a severance agreement. paragraph a paragraph that general release form was exactly the same as the severance agreements that I pulled up from online.

My question is should they have been held to the standard of a severance agreement when it had all of the characteristics of a severance agreement?

Thanks.

Answer 1

They have exactly zero legal grounds to withhold your last paycheck. From Code of Virginia 40.1:

All employers operating a business shall establish regular pay periods and rates of pay for employees except executive personnel. All such employers shall pay salaried employees at least once each month and employees paid on an hourly rate at least once every two weeks or twice in each month, except that (i) a student who is currently enrolled in a work-study program or its equivalent administered by any secondary school, institution of higher education or trade school, and (ii) employees whose weekly wages total more than 150 percent of the average weekly wage of the Commonwealth as defined in § 65.2-500, upon agreement by each affected employee, may be paid once each month if the institution or employer so chooses. Upon termination of employment an employee shall be paid all wages or salaries due him for work performed prior thereto; such payment shall be made on or before the date on which he would have been paid for such work had his employment not been terminated.

The Virginia Department of Labor and Industry unfortunately does not take claims if there is a written contract and recommends you pursue the matter in court. You may want to consult with a local labor attorney to get an idea of where to go from here, even if you plan to file in small claims court.

Virginia extortion law doesn't appear to apply to withholding stolen property, but their claim that release of the last paycheck is consideration for signing the NDA may be some other civil wrong, like conversion. I do not know whether you could recover damages above the wage owed for that.