My former employer is withholding my w2 in exchange for supposed damage fees, what do I do?

Question

My former employer, at a hotel my husband and I worked at, is refusing to mail me my W2 because he claims that my husband owes him damage fees for the room we stayed in there. However, when we left there was no damage done to the room, I know because I cleaned it out myself.

I went in person on January 16, while I was back visiting for a while, and nothing was mentioned to me about any damage fees being required. All I was told was that they would mail my W2 to the address I gave them when they received said W2. The date I was told my W2 would be mailed came and went and there was no sign of it. So I called on Feb 21 and was told I had to pick it up in person, even though I had already told them that I wasn't in Indiana anymore (I was speaking with the manager at this point), so I decided I would call again another day and try to speak with the boss. I called on again on Feb 28 and Mar 2 and was told both times that he wasn't in or didn't want to speak with me. I called again today and finally spoke with the boss. He told me that I won't be seeing my W2 unless I pay supposed damage fees. I told him that it is illegal to withhold W2's and his reply was, "Fine. Sue me." I told him that is that was how he wanted to play, that I would contact the proper authorities and do just that.

My question is, what do I do about this? Who do I call?

Answer 1

Let's ask the IRS!

Employers have until January 31, 2011 to send you a 2010 Form W-2 earnings statement.

That means they have to send it to you. Your employer is being ridiculous, and I'm sorry.

If you haven’t received your W-2, follow these four steps:
1. Contact your employer If you have not received your W-2, contact your employer to inquire if and when the W-2 was mailed. If it was mailed, it may have been returned to the employer because of an incorrect or incomplete address. After contacting the employer, allow a reasonable amount of time for them to resend or to issue the W-2.

Sounds like you've already done this. Moving on...

2.Contact the IRS If you do not receive your W-2 by February 14th, contact the IRS for assistance at 800-829-1040. When you call, you must provide your name, address, city and state, including zip code, Social Security number, phone number and have the following information: - Employer’s name, address, city and state, including zip code and phone number - Dates of employment - An estimate of the wages you earned, the federal income tax withheld, and when you worked for that employer during 2010. The estimate should be based on year-to-date information from your final pay stub or leave-and-earnings statement, if possible.

They should give you advice and presumably ought to hassle your employer to send you your stinking W-2, because my goodness.

3. File your return You still must file your tax return or request an extension to file April 18, 2011, even if you do not receive your Form W-2. If you have not received your Form W-2 by the due date, and have completed steps 1 and 2, you may use Form 4852, Substitute for Form W-2, Wage and Tax Statement. Attach Form 4852 to the return, estimating income and withholding taxes as accurately as possible. There may be a delay in any refund due while the information is verified.

Hopefully, you've saved your earnings and leave statements/pay stubs, so you should be able to file your taxes anyway. You have to do this! Even though your employer is being unreasonable, the IRS will come after you if you don't file.

4. File a Form 1040X On occasion, you may receive your missing W-2 after you filed your return using Form 4852, and the information may be different from what you reported on your return. If this happens, you must amend your return by filing a Form 1040X, Amended U.S. Individual Income Tax Return.

If and when you get your W-2, you may have to amend your return. This is a pain, but if it turns out you've overpaid you should get a refund (possibly with interest, depending).

"Fine. Sue me."

Your boss sounds like a piece of work. IANAL, but I doubt suing him would be productive or a good use of resources. You could, however, hire a lawyer to write him a sternly worded letter instructing him that what he's doing is illegal and he'd better cut it out. Some people will buckle in the face of such a letter. This guy, on the other hand, might not respond to anything short of an actual lawsuit (which would be expensive and time-consuming). You and your husband know him better than I do, of course, so you should think this over in light of what you know about him.

Answer 2

I would not bother working with them more. They are required by law to do this.

I would directly followup with the IRS. They have a policy recommendation for this:

Contact the IRS. After February 14, you may call the IRS at 800-829-1040 if you have not yet received your W-2. Be prepared to provide your name, address, Social Security number and phone number. You should also have the following information when you call:

• Your employer’s name, address and phone number;
• Your employment dates; and
• An estimate of your wages and federal income tax withheld in 2012, based upon your final pay stub or leave-and-earnings statement, if available.

Alternatively, you could try to find your local IRS office and talk to them. I suspect they will not take lightly to a former employer refusing to give a W2.