Can I Sue My Employer for Not Giving Me My W2?

The Form W-2, Wage and Tax Statement, reports an employee’s annual wages and the amount of taxes withheld from their paycheck. Federal law mandates that employers must send this form to each employee no later than January 31 each year. This deadline allows individuals adequate time to meet their own tax filing obligations.

Initial Steps After the Deadline

If the January 31 deadline passes without your W-2, contact your employer directly. Verify they have your correct mailing address and request they send the form. It is helpful to document these communications, such as by saving emails or noting the date and time of phone calls.

Should your attempts to get the form from your employer be unsuccessful, allow a reasonable amount of time for it to arrive in the mail. If you still have not received the W-2 by mid-February, the next step is to contact the Internal Revenue Service (IRS). You can reach the IRS at 800-829-1040 to report the missing form.

When you call the IRS, you will need to provide specific information. This includes:

• Your name, address, Social Security number, and phone number
• Your employer’s name, address, and phone number
• The dates you were employed during the tax year

The IRS will use this information to contact the employer on your behalf and request the delinquent form.

Information Needed to File Without a W-2

If you are approaching the tax filing deadline and still do not have your W-2, the IRS allows you to file using Form 4852, Substitute for Form W-2. To complete this form, you will need to use your final pay stub for the tax year to estimate your financial data.

The information you will need from your last pay statement is typically found in the year-to-date (YTD) columns. This includes:

• Your total gross wages, salary, or other compensation
• Total federal income tax withheld
• Total Social Security and Medicare taxes withheld
• Any state and local income taxes withheld

Form 4852 also requires your employer’s full name, address, and Employer Identification Number (EIN). The EIN is a unique nine-digit number that can often be found on your pay stub or a W-2 from a previous year with the same employer.

The Process of Filing with a Substitute Form

After completing Form 4852 with your best estimates, you must attach it to your Form 1040, U.S. Individual Income Tax Return. The form requires a brief explanation of your efforts to obtain the actual W-2 from your employer. Filing with Form 4852 allows you to meet the tax deadline even without the official document.

The IRS may delay processing your return slightly while it verifies the information you provided. This verification is a standard part of the process when a substitute form is used.

If the official W-2 from your employer arrives after you have filed, compare the figures to your estimates. If they are identical, no further action is required. If the wage or withholding amounts are different, you must file an amended tax return using Form 1040-X, Amended U.S. Individual Income Tax Return.

Recourse Beyond the IRS Process

The primary recourse for a missing W-2 involves IRS enforcement. The agency imposes financial penalties on employers for each W-2 they fail to issue on time. These penalties start at $60 per form and can increase significantly for longer delays or intentional disregard.

An employee can potentially sue an employer over a missing W-2 to recover financial damages you incurred as a direct result of the employer’s failure. This is a separate action from the tax filing and IRS enforcement process.

Examples of such damages could include fees paid to a tax professional for the additional work required to file with Form 4852 or to later file an amended return. If the delay caused you to incur IRS penalties and interest, these costs could also be considered damages. Before pursuing legal action, it is wise to assess whether the potential recovery justifies the costs and time involved.