How Long Can an Employer Not Pay You Before It’s Illegal?
Understand your rights when pay is delayed, including legal timelines, employer obligations, and steps to take if wages aren't received on time.
Waiting for a paycheck that fails to arrive on time can cause significant financial strain. While occasional delays might occur, there is a legal distinction between an administrative error and a violation of wage laws that both employees and employers should understand. Federal and state regulations establish rules for timely wage payment.
Legal Requirements for On-Time Wages
Federal law, primarily the Fair Labor Standards Act (FLSA), requires employers to pay covered employees at least the minimum wage for all hours worked and overtime for hours exceeding 40 per week.1U.S. Department of Labor. Handy Reference Guide to the Fair Labor Standards Act While the FLSA mandates these payments, it does not specify how often employees must be paid.
Instead, the FLSA requires that earned wages be paid on the “regular payday” designated for that pay period.2U.S. Department of Labor. Wages and the Fair Labor Standards Act Employers must establish a consistent payday schedule and inform employees. Payment delayed beyond this established date generally violates federal requirements, which courts and the U.S. Department of Labor interpret as mandating prompt payment on the scheduled day.
Specific payment frequencies, such as weekly or bi-weekly, and deadlines, like payment within a set number of days after a pay period ends, are typically determined by state law.
Typical Pay Periods
An employee’s paycheck schedule depends on the pay period set by the employer, which is the regular frequency—like weekly, bi-weekly, semi-monthly, or monthly—for receiving wages.
State laws often dictate minimum payment frequencies to ensure workers receive earnings predictably. Many states require payment at least semi-monthly (twice a month) or monthly, and some specify the maximum number of days allowed between paydays. Certain industries or job types may have unique state rules, sometimes mandating weekly pay.
According to the Bureau of Labor Statistics, the most common pay frequencies among private employers are bi-weekly (every two weeks) and weekly. Semi-monthly (twice a month on specific dates) and monthly schedules are less frequent but still used, often for salaried positions.
Penalties for Late Payment
Failure to pay wages on the established regular payday can lead to legal consequences. Under the FLSA, employees can recover the unpaid wages, including minimum wage and any overtime owed.
The FLSA also allows for an additional amount called liquidated damages, typically equal to the unpaid wages, effectively doubling the recovery.3U.S. Department of Labor. FLSA Advisor: Liquidated Damages An employer may avoid these damages only by proving they acted in good faith and had reasonable grounds to believe they were not violating the law.
State laws often impose further penalties, which can include “waiting time penalties” (owing a day’s wages for each day a final paycheck is late, up to a limit) or statutory fines (fixed amounts or percentages of unpaid wages). Employers might also have to cover the employee’s attorney’s fees and court costs. Willful or repeated violations can result in civil fines paid to the government, and in rare, severe cases, potential criminal penalties.
Exceptions to Payment Rules
While timely payment is the standard, certain situations allow for legally recognized exceptions to regular payday schedules.
Rules often differ for an employee’s final paycheck. Federal law generally permits payment on the next regular payday, but many state laws set stricter deadlines, particularly for terminated employees, sometimes requiring payment immediately or within a few days. For employees who resign, the deadline might be the next payday or a specified period, varying by state and whether advance notice was given.
Genuine, good-faith disputes over the exact amount of wages owed can also be an exception. An employer may delay paying the disputed portion while investigating, but any undisputed amount must still be paid on time. Accepting the undisputed portion does not prevent an employee from pursuing the remainder later.
Compensation structures, like commissions, can affect payment timing. When a commission is considered “earned” depends on the agreement (e.g., at sale, upon delivery, or upon customer payment). Payment for earned commissions might fall outside the regular wage cycle but must generally occur on the next designated payday for commissions or as soon as calculations allow.
State laws or collective bargaining agreements (union contracts) may also establish different payment timing rules for specific employee classifications (like executive or administrative roles) or industries (such as agriculture). These agreements can override general state requirements if they meet minimum legal standards.
Filing a Wage Claim
If discussions with an employer do not resolve issues of late or missing pay, employees can file a formal wage claim. The U.S. Department of Labor’s Wage and Hour Division (WHD) enforces federal wage laws, while state labor agencies handle state-specific laws.
Before filing, it is helpful to gather information: the employer’s name and address, pay stubs, time records, employment agreements, and any communication about the unpaid wages. Details about the affected pay periods, hours worked, and the amount owed are crucial.
Claims can typically be submitted online, by mail, fax, or sometimes in person. The WHD accepts complaints via phone or through local offices. State agencies usually have similar procedures. It is important to file within the applicable time limits, known as statutes of limitations. Federal claims generally must be filed within two years of the date wages were due (three years for willful violations), though state deadlines may differ.
Once a claim is filed, the agency usually investigates by contacting the employer, requesting records, and interviewing both parties. The goal is to determine if a violation occurred and calculate any back wages owed. Agencies often facilitate mediation or settlement. If a violation is found and the employer does not pay voluntarily, the agency can pursue enforcement actions to recover the wages for the employee.