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Payroll: something very "fishy" going on... California

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  • Payroll: something very "fishy" going on... California

    On 4/24/08 I quit my job in a very high-stress dental office [hired Jan 06.] The reasons I left are fairly compelling and I've been told I have a good chance of winning a "just cause" UI claim; my initial phone interview is in 4 days. [I will also be filing a DLSE claim or a civil suit.]

    Worked either a 4/10 week, or 4/9 with a fifth 4 hr day; OT was calculated on 40 hrs. Started at 7:30 am. Often did not get lunch until 1-1:30 pm, sometimes as late as 2:30 pm, by which time I was feeling shaky [not good when you are handling sharp instruments around peoples faces!] No breaks. While I was scheduled for a 60 min lunch, the DDS frequently ran late with patients leaving 30 min or less...the "less than" average over my 28 mo tenure probably works out to 1.5 -
    2 times/wk.

    By Feb 06, I began to "request" the mandated extra hour's pay for those days I received less than a 30 min "lunch"...say,
    15-20 mins for a 10-11 hr shift! I was basically told by my Manager to forget it, that the Doc wouldn't pay it. I still continued to ask for it up to the very day I quit...and hey, we're not even talking about the 4-6 hrs per week of "off-the-clock" time [with the full knowledge of my Mgr.] The boss knew too. HOW SERIOUS IS THAT?

    On the day I quit, I demanded all the lunch OT which I had accrued. Four days later, I received my final paycheck plus a check for $4,774 for the lunch OT. It was broken down as 58 hrs reg pay and 433 hrs of VACATION pay!? The actual vacation time due me was 5 days...the rest was based on some magical calculation, and with NO written breakdown. The paystub said the check was for 4/16/08 to 4/30/08. I requested ALL payroll records and got a lot of angry/nervous hemming and hawing; I then demanded the records and presented a copy of LC 226. HOW IS THIS VACATION PAY?

    As far as I can tell, we're still looking at lunch penalties, break penalties, no break for 6-8 hrs penalties, as well as back pay and penalties for mucho hrs worked off the clock...and yes, the o-t-c hrs can be verified.

    1. A very fishy example: I work 16 days a month, allowing for a total of 160
    reg hrs spread over 2 pay periods. My actual hrs worked are 202

    + pay period one was for 96.48 reg hrs / 2 OT / .40 retro
    + pay period two was for 88.86 reg hrs / 10.30 OT / 4.04 retro

    How the heck did I only get 12.5 hrs OT out of 202 hrs ?? Yes, they are
    always carrying hrs from one pay period to the next BUT it constantly
    appeared that a considerable number of OT hrs turned into Reto hrs at
    the reg rate when they were carried over. HOW IS THIS LEGAL ??

    2. FLSA says no fluctuating work week for hourly employees. It also says
    if short-changed on pay, OT, etc, that employee is entiltled to an
    additional 30 days pay as waiting time penalties. WILL THAT APPLY
    HERE?

    3. On the $4774 check I received, the gross amt was $8114. Because of the
    size of the check, I paid almost twice the FED tax I would have paid if I
    had received the money when it was actually due me...that sucks!!
    DO I HAVE ANY KIND OF RECOURSE? PERHAPS INJURIES FOR ALL THE
    TIME & GRIEF OF SORTING THIS MESS OUT?...ETC?

    DOES THIS WARRANT A CIVIL SUIT AND WOULD THAT BE THE BEST COURSE OF ACTION?

    I promise I made this as short as I could....OK, Patty?
    Last edited by kali_girl; 05-04-2008, 07:20 PM.

  • #2
    Well, still not short enough, but I managed to wade through it.

    First, I would ask for an accounting of how the employer came to that amount. From that, you can, perhaps, move forward.

    A lump sum payment such as you describe is "supplemental wages". As such, the employer can choose to calculate federal income tax at 20% and CA state income tax at 6%. When you include FICA/Medicare at 7.65%, that 33.65% and it doesn't include SDI contributions. So, depending on what your W-4 had, it's possible that the taxes could be much higher than what would normally be withheld.

    Injuries and damages for the mess? Nope.
    I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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    • #3
      Originally posted by Pattymd View Post
      ... the employer can choose to calculate federal income tax at 20%
      More like 25%.
      "Reality is that which, when you stop believing in it, doesn't go away".
      Philip K. **** (1928-1982)

      Comment


      • #4
        Originally posted by DAW View Post
        More like 25%.
        Oops. I sit corrected. Lucky I don't have to re-certify until fall 2009.
        I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

        Comment


        • #5
          Thanks, I have already requested an accounting of how the OT amount was determined. To me, this still begs the question as to why the employer should have no consequences for willfully withholding these monies in the pay periods in which they were due? Yes, it was willful; they knew the law from day one.

          Per MTracy's website, it sure looks like liquidated damages apply here; at least from an FLSA standpoint. There is also the issue of verifiable hours worked off the clock, which would be something like $10k in OT. How does that figure into the scenario?

          Yes, I am obviously an aggrieved ex-employee. There is far more to this story than the money issue...and that would be at least a novella .I don't have an overwhelming desire to see this go to litigation. But this is not the first time this employer has done this, and if there is zero accountability it will not be the last...

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