How to Collect Unpaid Wages Under the South Carolina Payment of Wages Act

Over the years, our employment law attorneys have been asked questions about the South Carolina final paycheck law, also known as the South Carolina Payment of Wages Act. This article explains South Carolina’s laws covering an employee’s rights to receive wages, including a final paycheck, and what happens if an employer fails to pay an employee in South Carolina.

What is the South Carolina Payment of Wages Act?

The South Carolina final paycheck law is known as the South Carolina Payment of Wages Act. Section 41-10-30 requires requires employers to:

  1. At the time of hiring, give written notice of any deductions from wages, such as deductions for insurance (under Section 41-10-40, an employer cannot deduct items from your paycheck unless written notice was given);
  2. Keep wage records for three years; and
  3. Give a written, itemized statement of wages for each pay period.

South Carolina law requires an employer to pay an employee on every regularly scheduled payday. For any changes in wages or deductions, except wage increases, the employer must give the employee seven days written notice.

When Does an Employer Have to Give an Employee a Final Paycheck Under the South Carolina Payment of Wages Act?

Under Section 41-10-50, in South Carolina, the employer must issue a final paycheck to an employee who quits or is terminated “within forty-eight hours of the time of separation or the next regular payday, which may not exceed thirty days.” Under Section 41-10-60, if the employer disputes how much is due, the employer must give written notice of how much the employer believes to be due and pay that amount on time.

What Happens if an Employer Violates the South Carolina Payment of Wages Act?

In South Carolina, if an employer fails to pay wages on time or to issue a final paycheck on time, then the employer may be exposed to civil penalties.

First, if a worker doesn’t get paid, he or she can file a complaint with the South Carolina Department of Labor for unpaid wages. However, even if the Department investigates and determines that the employee is owed the wages, it can’t force the employer to pay.

Second, Section 41-10-80 provides that an employee who brings a civil lawsuit may recover three times the amount of unpaid wages plus attorney’s fees and costs. The section also states that a “civil action for the recovery of wages must be commenced within three years after the wages become due.”

Not only are businesses and corporations responsible for unpaid wages, but agents or officers of a corporation who knowingly permit their corporation to violate the South Carolina Payment of Wages Act may be individually liable to the employee for the amounts owed. So, even if a company goes out of business, the employee may be able to recover the unpaid wages directly from someone else in the company.

Can a Salesperson Collect Unpaid Commissions Under South Carolina Law?

Yes, under the South Carolina Payment of Post-Termination Claims to Sales Representatives Act, Section 39-65-30, a salesperson can sue in civil court and collect three times the commissions due plus attorney’s fees and costs.

Can an Independent Contractor Sue Under the South Carolina Payment of Wages Act?

If you are indeed an independent contractor, you cannot sue under the South Carolina Payment of Wages Act. However, you can challenge whether you are an independent contractor under South Carolina law.

In South Carolina, some employers inaccurately claim that an employee is an “independent contractor.” Whether you are called an “independent contractor” or receive a 1099 doesn’t mean you are an independent contractor.  Instead, South Carolina courts consider four factors to determine whether you are an employee :

  1. Whether the employer had the right to or exercised control of the work being performed;
  2. How the employer paid the worker;
  3. Whether the employer furnished equipment, tools, and supplies for the worker to perform his or her duties; and
  4. Whether the employer had the right to fire the worker.

For example, if the employer controls how the worker performs his or her duties and supplies all of the equipment and materials to get the job done, that worker may be an “employee,” regardless of whether the employer claims that the worker is an independent contractor.

For Help, Contact Our Wage Claim Lawyers in Charleston, South Carolina

If you are an employee in South Carolina, and your employer has wrongfully withheld your wages, failed to pay you on time, or failed to pay your final paycheck, then contact the Charleston wage claim lawyers of Futeral & Nelson, LLC, for a free consultation.

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