I'm trying to not make this confusing, but somehow I think I'll fail. This may require notes and a calendar in front of you:

Today we received our paycheck for Nov 1 - Nov 15. The last week of that pay period was Sat - Wed. Our pay weeks are Sat - Fri. If an employee worked either Sat, Nov 11 or Sun, Nov 12 our current system holds off on paying the employee until the pay week is completed. This means that work done on Nov 11 or Nov 12 would not be paid until Dec 15. The reasoning is that HR is unsure whether it will be paid as OT or not, so they don't pay you until they know.

Is that a lawful practice?

No. For California, the requirements are:

Wages earned 1st-15th of month, pay by 26th; 16th-31st, pay by 10th of next month; exempt employees by 26th of month for entire month (safe harbor: within 7 days after pay period)

So holding off until Dec 15 for wages earned in the first half on November is wrong.

HR/Payroll's concern about OT is genuine and it is a problem when using a semi-monthly pay period for non-exempt employees. Work weeks will get split between pay periods. Not a problem for the half week that comes at the end of the pay period when there probably is no overtime (except for the daily stuff that can happen in CA, and that will be easy to figure out anyway). The problem is on the next pay period, having to look back at the half already paid and figuring out if there is any additional overtime owed for going over 40 hours in the full week (or any of those other variations allowed by California).

But, reading Patty's comments in another post, the practice might be legal

http://www.laborlawtalk.com/showthread.php?t=164240

Yep. The can't be certain if overtime has been worked and, if so, how much, until the workweek is complete (except for daily overtime). Administratively, though, it would be a nightmare to have to pay the daily overtime through the last day of the pay period (plus the fact that an interim time sheet/card would be required) and not be able to calculate the overtime for the full workweek and pay it at a later time.

Lord, I hate semi-monthly pay frequencies for nonexempt. :mad: :p

I agree you cannot be certain if overtime was worked or not. Why wouldn't you pay the regular time though? Regardless you're having to go back and look. Why is the Saturday and Sunday handled differently than say a Monday if Monday is the last day of the pay period? They don't withhold our Monday pay. Monday is paid as regular time.

If my schedule was Sat - Wed and my pay period ended on Wednesday, would they withhold the Sat - Wed pay for an entire month in order to wait and see if I worked Thurs or Fri?

I have no idea why they wouldn't forecast at least the regularly scheduled hours. What is the check date in relation to the pay period ending date?

In keeping with the scenario, we were paid Nov 15th for pay period 11/1 to 11/15. OT, sick, or vacation time is calculated a paycheck behind (or two, which is my original complaint).

This payroll practice is really strange. In Ca the way this is paid is as ScottB posted.

I have never heard of an employer paying wages before the close of a pay period. The law says paid between the 16th and 26th. Not on the 15th.

Perhaps your employer just has it wrong? Check with your local DLSE

Actually, no, Interceptor, this is actually quite common with semi-monthly pay frequencies where the pay period end date coincides with the check date. It's called "forecasting" and normally, the employees are paid for their scheduled time in the pay period and corrections, overtime, etc. are recorded/paid on the next payday.

Patty ,

I took this from Cal Labor code sec 204. Labor performed between the 1st and the 15th, days inclusive ,of any calender month shall be paid for between the 16th and the 26th day of the month during which the labor was performed .

I am not certain and you are the Hr pro. But I think that if Ca permitted forecasting for the pay period of the 1st thru the 15th then the employee would not be paid for all hours during that period . Then they would be paid more than likely on the next pay period (for the forcasted hours if any were due )which would be the next month.

The problem I see with forecasting and section 204 is that the EE must be paid for all hours in that pay period( 1-15) in the same month (16-26). If not the EE could recover the penalty.

This is interesting actually . I have my doubts that forecasting is acceptable in Ca

Check it out CA LC 204. I didnt type out the whole thing. Too long

Forecasting, if properly used, IS allowable in California. Maybe I misunderstood the OP's situation. It sounded to me like he was talking just about the overtime pay being delayed. But some other responses have sounded like he was saying that he was not paid his regular scheduled hours for, as an example, from the 11th or 12th through the 15th until the last day of the month. That would be a violation as Interceptor states.

The 11th/12th would be a Saturday/Sunday. We're forecasted for weekdays only. So in the event that we work the last weekend of a pay period our regular pay rate for those days is withheld until HR can determine what the rate of pay will be. That takes one more pay period to figure out (Nov 30th) and then another pay period to actually pay it (Dec 15th).

So if I take section 204 to them it ought to be proof enough that they need to change their ways? I'm sure they'll take this to their own lawyers, but I want decent ammo before I cause yet another stink.

OP, It seems to me that you would be entitled to pay for " all " hours of work for each pay period 1st thru the 15th payable on 16th thru the 26th.
The 16th thru the last day of the month payable between the 1st and the 10th of each month.

Section 204 does not say anything about weekends . It says all days inclusive of the pay period and hours.

Patty is the HR pro . To me personally I do not think you are being payed correctly. California has very strict rules for the payment of wages. It seems your employer is making this much more dificult than it needs to be.

Why vacation and sick pay is bieng held back I do not understand either.

I suggest you check with your local DLSE before going to you employer with this matter. Perhaps we are missing something here? Doesnt seem right to me .

Good luck

Vacation and sick time have to be held back due to forecasting. The 15th of the month you're paid for the 1st - 15th. On the 15th you turn in your time card for the pay period ending. Any adjustments necessary are then made on your pay check for the 30th.

What puzzles me is that any adjustments made are made on the next pay period when you have the right to be paid fairly and accurately for all hour of work withinh that pay period. This is why section 204 is written the way it is. Makes me wonder are the check stubs accurate it seems each one is an adjustment.

Lets say you were short two hours for the pp 1-15 now you would not get paid for that until the 1st thru the 10 or in your case the end of the month when it was due no later than the 26th. You could be entitled to the penalty because all hour were due and payable per the definitions of section 204,which they are not compliant with.

To keep it accurate they should just pay you at the close of the pay period. I think forecasting would be fine as long as it is accurate.

Lets say you were short 4 hours for the 1st thru the 15 th. The laws say to be paid for no later then the 26th . They cannot wait until the next pay period. They would need to cut another check for the difference or the waiting time penalty would apply past the 26th.

What if you were over paid? So they short the next check? I seriously doubt they could just take a deduction without written authorization when they are obligated to keep records and pay accurately for each pay period.

It seems pretty screwy to me . Run it by the labor commissioner. I wouldnt want an employer guesssing on my paycheck no more than they would want we to guess about my work .

I managed payroll for years in California. We ran payroll on Monday for the biweekly pay period ending the previous Friday. We paid the employee's regularly scheduled hours and made adjustments, including overtime, on the next payroll. Perfectly legal. We also made adjustments for overpayment on the next payroll. We NEVER had anyone call us on this.

See, here's the deal. Let's say the 14-15th is a Saturday/Sunday and you aren't scheduled for those days. To pay you on the 13th (or even the 16th), the employer would have to submit the payroll no later than the 11th or 12th. How could they pay you on the 13th for time you MAY end up working on Saturday/Sunday when you're not normally scheduled to work those days.

Again, paying nonexempt employees "current" is really stupid.

Patty, your scenario makes sense. It's taking me two pay periods for my adjustment though, not one. Have we agreed that this practice is most likely unlawful?

Can you sick the DLSE on them annonymously? Any investigation company wide would result in quite a few infractions. I eventually get paid and don't necessarily need to be known as a whistleblower.

I agree with Patty on the stupid thing.

OP What does your employer define as a work week? Your right... you may be working hours that should be considered overtime . Perhaps they are paid as OT. Maybe not.

Employer created confusing mess. DLSE bound?

Yes OP you can file an anonymous complaint with the DLSE. But first see what they say about LC sec 204.

Work week is Saturday through Friday.

Went and chatted with HR. They claim that everyone they talk to say the copmany is in compliance. Somehow holding our pay for 30+ days is legal according to them. She said something about us being in an 86.67 hour work week changes things.

Sigh

Go the the DlSE for advice . Hourly non exempts are entitled to be paid twice monthly .

Taken from LC sec 204 : All wages ,other than those mentioned in 201,202,204.1 or 204 earned by any person in any employment are due and payable twice during each calender month ,on days designated in advance by the employer as the regular paydays. Which actually need to be posted by law. And they do pay twice monthly but not compliant with lc sec 204

I wonder what Ca labor code section they are referring to? My experience has been employers always say they are right even when they are not.

Read ca labor codes 200 thru 243 for the payment of wages. Talk to a labor law attorney or the DLSE.

Ask the employer to write a letter and specify why they are correct. That you just do not understand.

I agree with you . I do not think this is a lawful practice by holding back wages that are due and payable past the definition of the labor code.

DLSE quoted sections 204 and 210 in saying that their practices are a violation. I can file a complaint, in which case the company will receive a letter stating that they need to change their practices. This letter would be mailed sometime in the coming months. If they do not adhere to the state's request to change their policy then they would be fined by the state.

Not sure what I'll do. I'm financially secure, so waiting an extra two weeks doesn't kill me. I find it extremely unfair however, so that might be enough to get me to file something. Nobody wants to file in case of backlash. Even if I don't file myself I'll be implicated for the act. Shrug.

I had a strong feeling on this one. Watch yor over time to ensure you are bieng paid fair overtime pay. Your overtime could easiy get lost with the pay practice the way it is.

Remember you have three years to file a wage claim( if you are short wages) from the date the claim arose. If you have been there more than three years you may want to pursue the matter maybe not .

I am certain you are owed the penalty for payment of late wages.

I personally do not care for dishonest employers and in this state wage and hour law violatoins are rampant.

Good luck my friend.

You are not entitled to anything in my scenario for late payment. The state gets any penalties the employer is fined, if someone complains at all.

Yes.. you would be entitled to what is called the waiting time penalty . This is calculated at wage per day not exceed thirty days . This is a completely different matter than fines. An no.. if the state imposed fines upon the employer you would not be entitled to this.

When an employer willfully pays an employee late ( as in your case) the employee would be entitled to the waiting time penalty. The DLSE does not tell people this .Penalties and fines are different.

Unless you brought an action under labor code section LC 2699

Please see california labor code section LC 203 for waiting time penalties

Interceptor, Code Section 203 is specific to employees who are discharged and are not paid their final wages by the date required or when the paycheck (at any time) is dishonored by the bank. I'm not as convinced as you are that waiting time penalties would be imposed in this situation.

If an employer willfully fails to pay, without abatement or
reduction, in accordance with Sections 201, 201.5, 202, and 205.5,
any wages of an employee who is discharged or who quits, the wages of
the employee shall continue as a penalty from the due date thereof
at the same rate until paid or until an action therefor is commenced;
but the wages shall not continue for more than 30 days.

If an employer pays an employee in the regular course of
employment or in accordance with Section 201, 201.5, 201.7, or 202
any wages or fringe benefits, or both, by check, draft or voucher,
which check, draft or voucher is subsequently refused payment because
the employer or maker has no account with the bank, institution, or
person on which the instrument is drawn, or has insufficient funds in
the account upon which the instrument is drawn at the time of its
presentation, so long as the same is presented within 30 days of
receipt by the employee of the check, draft or voucher, those wages
or fringe benefits, or both, shall continue as a penalty from the due
date thereof at the same rate until paid or until an action therefor
is commenced. However, those wages and fringe benefits shall not
continue for more than 30 days

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab&group=00001-01000&file=200-243

Patty,

I understand what you are saying but I have had this situation in the past with an employer who's checks were bouncing . After several months of this practice I took the matter to the DLSE for this and overtime pay. I was awarded wages and penalties under section 203. I was still employed with the company. I did end up doing a constructive discharge at a later date.

And it is my impresssion that this thread has run its course. Let's move along, people.