Can I legally record conversations so I have proof of my employer’s unlawful conduct?
Yes, if you are a participant in the conversation. South Carolina is a one-party consent state, which means it is legal to record the conversation as long as one party, in this case, you, knows the conversation is being recorded.
You should check the company’s handbook to see if there is a policy against recording. If your employer has a policy against recording, this would make recording against company policy, but not against the law.
Even if your employer has a policy against recording, the National Labor Relations Board has protected employees who have recorded conversations if the employee is gathering evidence of unlawful conduct, such as harassment, discrimination, or interference with labor rights.
When am I supposed to receive my last paycheck?
In most cases, you should receive your final wages on your next regular payday. However, your employer has up to thirty (30) days to pay all wages owed. Under § 41-10-50 of the South Carolina Code, an employer must pay all wages due within forty-eight hours of separation or by the next regular payday, but in no event later than thirty days. While you should be paid on the next regular payday after separation, your employer does not violate the law unless the thirty (30) days have passed without payment.
What should I do if I have not received my last pay check within thirty (30) days?
If thirty 30 days have passed and your employer is withholding your wages, you have two options. The first option is to hire an attorney and file a lawsuit seeking three times the wages you are owed, plus attorney’s fees, under SC Code Ann § 41-10-809(c). The second option is to file a complaint with the South Department of Labor, Licensing & Regulations. You can file online https://llr.sc.gov/wage/pdf/wcl-3.pdf or contact the SC Department of Labor. (843) 746-2975.
Does my employer have to pay me for my unused accrued paid time off (“PTO”) in my last paycheck?
The answer is it depends on your employer’s written policy. If your employer has a written policy that states you are not entitled to your PTO if you are terminated or if you resign without notice, then your employer may not be required to pay you the unused PTO you accrued.
However, if your employer does not have a written police stating otherwise, then you are likely entitled to the unused PTO you accrued. SC Code Ann § 41-10-10(2) defines wages as all amounts for which labor rendered is recompensed, including vacation, holiday, and sick leave payments due to an employee under any employer policy.
Can my employer take deductions from my wages?
Not unless they provided you written notification at the time you were hired of the deductions. SC Code Ann § 41-10-30 requires employers to provide written notice of any deductions at the time of hiring. If your employer is taking unauthorized deductions, you should consult with an attorney or report your employer to the SC Department of Labor Licensing & Regulation online https://llr.sc.gov/wage/pdf/wcl-3.pdf or call the SC Department of Labor. (843) 746-2975.
Am I entitled to breaks?
Sadly, No. While other states have laws that require employers to provide rest breaks, South Carolina law does not require employers to provide meal or rest breaks to employees, whether they are adults or minors.
However, if your employer provides you with unpaid meal breaks and requires you to work during your unpaid meal break, then your employer may be violating the Fair Labor Standards Act or the South Carolina Payment of Wages Act. In such cases, please call the office or contact me through the website, as you may have a claim against your employer depending on the circumstances.
If I am given the option to resign or be terminated, what should I do?
First, ask your employer for additional time to consider their request so that you can consult with an employment attorney. If your employer insists that you make an immediate decision, be aware that resigning will make it very difficult to bring a claim against them; however, you may not have a valid claim regardless. If you think you may have a claim the safer course of action is not to resign and let your employer terminate you. Additionally, if you resign, you will not be eligible for unemployment benefits.
What should I do if my employer wants me to sign a write-up for something I didn’t do?
If you did not do what you are accused of doing in the write-up you should sign the write-up and write, “I acknowledge receiving this write-up; however, I dispute the allegations”. You should explain why the allegations are false. This way, there is a record of you disputing the claims against you. Suppose you believe the write-up is retaliation because you complained about discrimination, harassment, based on your sex, race, age, disability, or because you complained about wage violations. In that case, you should state that you believe the write-up is retaliatory because you complained about about what you believe is unlawful conduct.
Can my employer lower my wages?
Unfortunately yes. SC Code Ann 41-10-30 (A) allows your employer to lower your wages as long as they provide seven (7) days’ written notice before the change goes into effect.
Does my employer have to give me a paysub?
Yes. SC Code Ann 41-10-30 (C) states, “Every employer shall furnish each employee with an itemized statement showing his gross pay and the deductions made from his wages for each pay period.”
Am I entitled to unemployment benefits?
If you have been terminated or laid off, you may be entitled to unemployment benefits as long as you were not terminated for misconduct. You can apply for 20 weeks of unemployment benefits on the SC Department of Workforce and Employment (“SCDEW”) Website. https://www.dew.sc.gov/applying-benefits
You must complete two weekly job searches on SCDEW’s portal each week to remain eligible for benefits. If you don’t complete the job search online, SCDEW will take away your benefits.
If your former employer denies your claim, you can write SCDEW a letter stating you want to appeal their decision. Make sure you fax the letter in the timeframe provided for the appeal. Otherwise, SCDEW will deny it as untimely.
SCDEW will schedule a telephone hearing. If your employer denied you benefits, they are required to testify and prove that you committed misconduct.
SC Code Ann. 41-35-120 states “ ‘misconduct’ is limited to conduct evincing such wilful and wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in the carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent, or evil design, or to show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to his employer.
You are allowed to testify on your behalf and call witnesses. You can complete a form and require your employer to produce witnesses, or you can call witnesses on your own. Just make sure you provide their number to the hearing officer at the beginning of the call, and that your witness is available when the hearing is scheduled. You can also upload documents to the portal that demonstrate you did not commit misconduct. For example, you upload positive evaluations or emails regarding your work performance to refute your employer’s claims.
SC Code Ann. 41-35-120 states, “No finding of misconduct may be made for discharge resulting from an extreme hardship, emergency, sickness, or other extraordinary circumstance.” If you were terminated because you were sick, you may want to upload a doctor’s note or any other documentation showing why you missed work.
If the hearing officer determines that you did not commit misconduct, then SCDEW will reinstate your benefits. However, make sure you complete the job searches while you are waiting for the hearing and decision on your appeal because even if you win the appeal, SCDEW will deny you benefits if you didn’t complete the online job search on their portal every week.
I am being harassed at work, but the harassment does not have anything to do with my race, color, religion, sex, pregnancy, sexual orientation, national origin, age, or disability. Can I still bring a claim against my employer?
While you may be experiencing harassment or a hostile work environment, for it to be considered illegal and actionable, it must be based on a legally protected characteristic. The harassment must be based on your race, color, religion, sex, pregnancy, sexual orientation, national origin, age, or disability. If your employer is harassing you for other reasons, while it is unfair, it is likely not illegal.
Can I keep the items my employer provided, such as a laptop, phone, keys, etc., if my employer doesn’t provide my last paycheck?
No, if you have property that belongs to your employer, you must return it, regardless of whether they owe you wages. If you don’t return your employer’s property, they could report you to law enforcement. If your employer owes you wages, you should consult with an attorney or report your employer to the SC Department of Labor Licensing & Regulation https://llr.sc.gov/wage/pdf/wcl-3.pdf or contact the SC Department of Labor. (843) 746-2975.
My employer is harassing me and/or creating a hostile work environment. Should I quit?
First, ask your employer for additional time to consider their request so that you can consult with an employment attorney. If your employer insists that you make an immediate decision, be aware that resigning will make it extremely difficult to bring a claim against them; however, you may not have a valid claim.
To prevail, you would have to prove that your resignation amounted to a constructive discharge, which is a very high standard under South Carolina law. Constructive discharge occurs only when an employee resigns because working conditions created by the employer are so objectively intolerable that a reasonable person would feel compelled to quit. These conditions must rise well above being unpleasant, they must be truly unbearable. While you may think it is unbearable, a judge may not agree.
My employer is requiring me to sign an arbitration agreement, do I have to sign it?
You don’t have to sign an arbitration agreement by law. But, as unfair as it sounds, your employer can legally fire you or take back a job offer if you refuse. If you have some leverage, you can try to negotiate not to sign it, but keep in mind that pushing back could put your job at risk.
My employer provided me with a severance agreement, should I sign it?
First, ask for time to have a lawyer review the agreement. If you are over 40 years old, your employer is legally required to give you 21 days to review a severance agreement. Such agreements typically require you to waive all potential claims against your employer. If you believe you may have claims—such as harassment, retaliation, or discrimination—it is especially important to have a lawyer review the agreement, as they may be able to negotiate more favorable terms on your behalf.