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No timesheet = No paycheck in California

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  • No timesheet = No paycheck in California

    Hello,

    I have an employee who consistently fails to turn her timesheet in on time for payroll. During the last payperiod she did not turn her timesheet in at all.
    I am not HR, so I do not handle discipline. I only enter payroll. I just want to make sure the company will not be held responsible for not paying her this payperiod. Or at least until she turns in the timesheets.

    Are we required to pay her even without proof of timesheets?
    Thanks!!

  • #2
    You are required to pay her for any time you KNOW she worked. You CANNOT legally not pay her at all.

    However, according to a friend of mine who does payroll, if you have to estimate her hours, there is nothing preventing you from estimating on the low side and making her wait for any shortage till the next paycheck. Patty, do you concur with this? It came from our favorite "dragon lady". (I think I'm remembering what she said correctly.)
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

    Comment


    • #3
      Any chance of a cite on that for California law? I work for a large public institution & HR/Payroll consistently refuse to pay my employees on time without a timesheet signed by the employee - even when I forward them an email from the employee in which they state their hours and additionally fax them a timesheet signed by me as their supervisor confirming that they've worked the hours they say they have. This seems to me to be a clear case of "pay[ing] her for any time you KNOW she worked", but it'd be helpful if I could cite the relevant california code.

      Comment


      • #4
        It's Federal law, not CA law, but I don't have the specific cite. Patty?
        The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

        Comment


        • #5
          It is the employer's responsibility to keep track of all hours worked and pay for these hours by the statutory deadline for payment of wages.

          If an employee does not turn in a timesheet, it does not relieve the employer's obligation to keep track of the hours and pay the employee. The employer may write up, verbally warn, or immediately terminate the employee who is late turning in a timecard, but the hours worked must still be paid.

          The main issue is that there are no significant penalties for late payroll while the employee is still employed. The only real penalty is a civil penalty which requires a great deal of procedures to be followed before you can sue for it. This is why many companies can get away with delaying pay until a card is submitted. It is really just a case of the technicallities of the law requiring one thing, and the realities of enforcement allowing a very different practice to take place.

          It would be like the fine for speeding being $1 and no points on your license. Technically, it would be illegal to speed, but who would care.
          Michael Tracy
          Attorney
          http://www.laborlawradio.com

          Disclaimer: The above response is a general statement of the law and should not be relied upon as legal advice. It only assumes the facts that are stated in the message. The above response does not serve to form an attorney-client relationship.

          Comment


          • #6
            Thank you both for the rapid replies - very helpful. I guess my situation is more about being able to make a case that the employer <i>should</i> pay on time when they have written notification from an employee's direct supervisor that the work has ben performed. I don't think the employees I supervise are interested in actually getting the employer penalized, so much as simply getting paid on time. If I can make a case that they have a legal right to be paid on time even if there's no official timesheet, it may help, even if the employer in question has no particular need to fear penalties.

            Comment


            • #7
              I did get that from what you posted earlier. What I don't understand is why you would think the employer would change its policy because you showed them a law with little consequence to them?

              Clearly, the employer is not interested in paying the employees unless they fill out a time card. This seems to be the case even if a supervisor personally signs a time card verfying the hours. As such, I don't think this is a case of the employer "trying to do the right thing." It seems they want to do it one way and they aren't too open to alternatives.

              Also, you should keep in mind that there is no law that says "Employer must pay employees all wages, even if employee refuses to turn in a timecard." The law just doesn't work that way. What the law does say is that all wages for all hours worked are due on the regularly scheduled pay day. You can quote them this law if you wish, it is California Labor Code 204. Their lawyer will likely tell you that they interpret this to mean all wages which are reported by the employee on the timecard. If you look around, you can find a DLSE opinion letter that says that unreported hours must still be paid for. Their lawyer will just tell you that DLSE opinion letters are not the law and that they have frequently been overturn by the courts, and she would be correct.

              It is a nice idea that all you need to do is show your employer the law and they will follow it. However, the employer already knows the law. The analogy here with speeding is very apt. The reason so many people drive over the speed limit is not because they don't know what the law is, they are simply choosing to ingnore it.
              Michael Tracy
              Attorney
              http://www.laborlawradio.com

              Disclaimer: The above response is a general statement of the law and should not be relied upon as legal advice. It only assumes the facts that are stated in the message. The above response does not serve to form an attorney-client relationship.

              Comment


              • #8
                It is the employer’s responsibility to keep accurate records of the time that employees work. If the employer fails to maintain accurate time records, the employee’s credible testimony or other credible evidence concerning his hours worked is sufficient to prove a wage claim. The burden of proof is then on the employer to show that the hours claimed by the employee were not worked. Time records must be kept whether it is customary in the area or industry. (Anderson v. Mt. Clemens Pottery (1946) 328 U.S. 680; 90 L.Ed. 1515; 66 S.Ct. 1187 (rhg. den. 329 U.S. 822)) The leading California case on
                this issue is Hernandez v. Mendoza (1988) 199 Cal.App.3d 721; 245 Cal.Rptr. 36, which follows the rationale set out in the Anderson v. Mt. Clemens Pottery case


                41.1.1 from the DIVISION OF LABOR STANDARDS ENFORCEMENT
                ENFORCEMENT POLICIES AND INTERPRETATIONS MANUAL
                I have been interested in employment rights for some time, however I am not a lawyer. Always consult with an attorney, as they are more knowledgeable.

                Comment


                • #9
                  Joe, thanks for the detailed response, but I think the issue here is that the employee has not alleged anything for hours worked. Those cases all relate to an employee claiming X number of hours and and employer claiming Y. Those cases establish that it is the employers responsibility. In this case, the employee has not claimed anything. In fact, as soon as the employee does claim something, the employer will pay it immediately.

                  We have also established that what the employer is doing is against the law. The question is how do you get an employer to comply with the law when the penalty under the law is very small and very very infrequently enforced.
                  Michael Tracy
                  Attorney
                  http://www.laborlawradio.com

                  Disclaimer: The above response is a general statement of the law and should not be relied upon as legal advice. It only assumes the facts that are stated in the message. The above response does not serve to form an attorney-client relationship.

                  Comment

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