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  • tpacheco
    started a topic final check deductions California California

    final check deductions California California

    I have a friend whose daughter is in the negative in her vacation hours. the are moving out of state as of next week. her daughter never signed anything asking for an advance on hours, and the company had admitted it was their mistake. can they legally take the hours back, out of her final paycheck? and is there something I can print out from the wage an hour laws for her stating that they cannot, if that's the case?

    thank you in advance for your response.

  • tpacheco
    replied
    thank you all for your responses, I have given the info to my friend and I hope it will help her.

    Leave a comment:


  • DAW
    replied
    Call up CA-DLSE. That is the horse's mouth for this sort of thing. But I am guessing the answer is "yes". Legally the company has already paid those wages due once already and you are trying to get them to pay the same wages a second time. I have been on the other side of things and that is the argument I would use if someone took me to a CA-DLSE hearing (which I generally win). On the other hand there are different arguments that could be used going the other way. They can be found in the CA=DLSE manual. Which can be found on line. There is some court case (whose name I do not remember) you could cite. Look in the Wage Recovery section.
    https://www.google.com/url?sa=t&rct=...GMohCwkunQIZRA

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  • hr for me
    replied
    Here's what the DLSE has to say at http://www.dir.ca.gov/dlse/faq_vacation.html

    " Q. My employer allows its employees to take their vacation before it is actually earned or accrued. Last month I took my three weeks vacation before I had actually earned all of it. I quit my job this month and my employer deducted all of the unearned vacation days that I had taken from my final paycheck. Can he do this?

    A. No, your employer cannot deduct "advanced" vacation (i.e., vacation that is taken before it is earned or accrued) from your final paycheck. Because of work schedules and the wishes of employees, many employers allow employees to take their vacation before it is actually earned. Under California law, vacation benefits are a form of wages, and an employer's practice of allowing employees to take their vacation before it is actually earned or accrued is in effect an advance on wages. Thus, if an employee takes an advance on vacation and then quits or is discharged before all of that advanced vacation is earned or accrued, the effect is that there has been an overpayment of wages which is a debt owed to the employer.

    The California courts have noted on a number of occasions that an advance on wages, as with any other debt owed (either to the employer or a third party), is subject to the provisions of the attachment law. However, since wages are exempt from prejudgment attachment, neither the employer nor any third party can recover the debt by way of attachment of the employee's final pay, as to do so would violate the public policy considerations underlying the wage exemption statutes. Thus, in California since the wage garnishment law provides the exclusive judicial procedure by which a judgment creditor can execute against the wages of a judgment debtor, an employer may not resort to self-help to recover debts owed to the employer by an employee from the wages then due to the employee. "

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  • tpacheco
    replied
    Originally posted by ElleMD View Post
    Without knowing their policies, how the mistake happened, how much is owed and whether this would impact her making minimum wage and OT, it is difficult to say. Is that how the company plans to resolve this? Odds are if it was an honest mistake that resulted in over payment, she owes the money back, one way or another.
    I'm not sure how many hours are owed, and yes it was an honest mistake, but she is thinking they were going to take her entire check. is that allowed?

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  • ElleMD
    replied
    Without knowing their policies, how the mistake happened, how much is owed and whether this would impact her making minimum wage and OT, it is difficult to say. Is that how the company plans to resolve this? Odds are if it was an honest mistake that resulted in over payment, she owes the money back, one way or another.

    Leave a comment:

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