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Lost time card issue California

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  • Lost time card issue California

    My daughter was hired as a salaried employee at the rate of $45,000 per year. Of this amount, $6,000 was considered auto expenses and non-taxable.

    The employer's business slowed and she was converted to an hourly employee at $21.63 per hour. The employer has been calculating her pay by subtracting hours fewer than 40 from her paycheck. She still receives the $500/mo for auto expenses.

    Because of this convoluted system, she believes she has been underpaid by a considerable amount. From our careful analysis of her past time sheets, this appears to be the case.

    As we were attemping to reconcile this matter to present to the employer, it seems that an entire month's time card has mysteriously gone missing. Now my daughter is expected to take the employer's word for how many hours she has worked.

    Can anyone here offer any suggestions as to how best to approach this issue? We believe the amount owed is in the thousands.

    Thanks for any input.

    J.M. Parsons

  • #2
    Well, first you should check your math. $21.63 per hour is equivalent to an annual rate of $45,000, assuming a 40 hour work week. So, if $6,000 of her previous compensation was for auto expenses (leaving a salary of $39,000), and she is still receiving that, it would appear that they gave her a $6,000 raise, assuming no overtime. Paying her for actual hours worked when she works less than 40 is fair. Of course, she should be paid for overtime whenever that is appropriate. (And, I am assuming that by "salary" and "hourly" you really mean "exempt" and "non-exempt").

    So, unless there is more that you aren't telling us, it doesn't appear that there is underpayment involved. Of course, if she can't actually document $500/month in auto expenses some of that may be taxable.
    Last edited by Scott67; 02-06-2010, 12:15 PM.
    Please post questions on the forum rather than sending me a private message or email. That way others who have similar issues have access to the discussion.

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    • #3
      If she is now hourly non-exempt, she must be paid overtime when applicable.
      Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

      Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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      • #4
        Originally posted by Scott67 View Post
        Well, first you should check your math. $21.63 per hour is equivalent to an annual rate of $45,000, assuming a 40 hour work week. So, if $6,000 of her previous compensation was for auto expenses (leaving a salary of $39,000), and she is still receiving that, it would appear that they gave her a $6,000 raise, assuming no overtime. Paying her for actual hours worked when she works less than 40 is fair. Of course, she should be paid for overtime whenever that is appropriate. (And, I am assuming that by "salary" and "hourly" you really mean "exempt" and "non-exempt").

        So, unless there is more that you aren't telling us, it doesn't appear that there is underpayment involved. Of course, if she can't actually document $500/month in auto expenses some of that may be taxable.
        As I said, it is a convoluted system. When her compensation changed to "non-exempt" (thank you for helping me clarify), her employer calculated her rate at $21.63/hr, but she still receives the $500/mo designated car expenses. She is not required by the employer to document her mileage.

        She works on average about 25 hours per week, down from her previous 40. The employer deducts hours not worked (15 per week in that case) and reduces her pay at the $21.63/hr. I have no idea why she chose to do that, rather than simply converting her to non-exempt.

        She is required to fill out a timecard each week. The problem is that, now that she suspects that she might have been shorted, her employer claims to have "lost" all her November timecards, so she (my daughter) is now unable to check her hours and pay. I am looking for recommendations as to the best way she might proceed to get this matter straightened out. My daughter does have records for the hours she has worked for all other months.

        Thank you for your response.

        J.M. Parsons

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        • #5
          Originally posted by Betty3 View Post
          If she is now hourly non-exempt, she must be paid overtime when applicable.
          The concern is not the lack of overtime (she works on average 20-25 hrs/wk) but whether she is being paid properly for the hours she does work. And trying to reconcile her pay received for hours worked has now become difficult, as the employer claims to have "lost" the timecards for November.

          My question at this stage relates primarily to the lost timecard: how can she reconcile her pay when she doesn't have access to those documents?

          J.M. Parsons

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          • #6
            Originally posted by jmparsons View Post
            She works on average about 25 hours per week, down from her previous 40. The employer deducts hours not worked (15 per week in that case) and reduces her pay at the $21.63/hr.
            If she is now hourly non-exempt, she would only get paid for actual hrs. worked. (ie 25 hrs. per week)
            Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

            Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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            • #7
              It really doesn't matter how the employer calculates the weekly pay as long as the answer is correct. If your daughter works 25 hours at 21.63, that is $540.75. If her employer wants to say that she gets $865.20 for a 40 hour week and she worked 15 hours less so she is going to subtract $324.45 from the $865.20 to get to $540.75, it's the same answer. So, it doesn't matter.

              If your daughter thinks she worked more hours than she was paid for in November and the time cards have been lost, she can estimate her hours based on her best recollection to file a claim. But, if she has no idea at all how many hours she worked, she really has nothing upon which to base a claim.

              But, looking at the math, it is hard to see how you think "the amount owed is in the thousands". If she worked full time (40 hours a week) it would seem that she would remember that. If she were paid for 25 hours instead, the difference would be $324.45. If that happened in each of 4 weeks, that would total $1297.80. Since she has no idea of her actual hours, one might guess that they were less than that.

              And, by the way, the employer not requiring accountability for an automobile expense account, does not mean that the IRS will not. In fact, the opposite is true. See IRS Publication 17, Part 5.
              Please post questions on the forum rather than sending me a private message or email. That way others who have similar issues have access to the discussion.

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              • #8
                I'm afraid I may have made this whole situation more complicated than necessary.

                Here's the real issue: My daughter believes she has not been paid for all the hours she worked. She has been able to find the shortgages for all months last year, with the exception of November. Those time cards have mysteriously gone missing. Her pay stubs do not show hours worked, only gross pay minus taxes. She wants to reconcile her November pay. What are her options? Average hours worked over the year? Her own best recollection?

                Thank you all very much for this dialog. It is very helpful.

                J.M. Parsons

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                • #9
                  Assuming that you are talking about filing a claim with the labor board, if she can show that she has been shorted in all other months and the employer has lost the time cards for November, she can estimate based on reason and common sense. Either of the suggestions you make would probably be acceptable. The labor board will tend to believe the employee when the employer has lost the records.
                  Please post questions on the forum rather than sending me a private message or email. That way others who have similar issues have access to the discussion.

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                  • #10
                    I'm going to go ahead and jump in here... I'm the daughter in question.

                    When I run through 2009's timesheets and reconcile them against my paychecks, the number is never correct. Sometimes I was overpaid, sometimes I was underpaid. I don't have the numbers in front of me at the moment, but it varies from overpaid by about $200 to being shorted by $900.

                    Here's how the math was done: Let's say I worked 25 hours in a week. That's 25 hours x $21.63 an hour=$540.75 for the week. Instead, they would *subtract* 15 hours from the total salary amount ($324.45) So if this was weekly pay, it would be $812.50-324.45=A paycheck of $488.05, which is shorting me $52.70. Basically, over the course of the year, it ends up that I was shorted about $300, if I don't take November into account. Averaging the number of hours I worked the other 11 months of the year to account for the missing November card, the amount owed increases dramatically to over $1000. I'm planning on looking through my email inbox and at my deadline schedule to reconstruct my November schedule.

                    I don't, at this point, even know where to start. I still work this job, and while I'm looking for something else, the offers aren't exactly flooding in.

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                    • #11
                      You WILL get a different answer when you pay for hours worked vs. deducting for hours not worked, when the basis is a weekly "salary". That is because a weekly salary is based on 52 weeks per year (52 * 40 = 2,080 hours). But there are NOT 52 weeks in a 365-day year, there are 52.14 weeks in a year.

                      The weekly salary at $45000 annual would be $865.38; 52.0 weeks are used in practice in the profession, not 52.14. So, in your example of 25 hours worked per week, deducting hours not worked would calculate to $540.93 ($865.38 - (15 * 21.63)); paying for hours worked at $21.63/hr would calculate to $540.75. Are you really going to quibble about $.18? Especially when it's in your favor?

                      As stated several times previously, if you don't think you were paid for all hours actually worked, make your best estimate and file a wage claim; it either works or it doesn't.

                      And, unless you have an enforceable contract, that $500 auto expenses can be stopped at any time. Plus, as ScottB stated earlier, the employer is in violation of IRS regulations by not taxing it; it does not meet the definition of an "accountable plan".
                      I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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                      • #12
                        I agree with you: a $0.18 discrepancy would be frivolous complaint. My daughter's concern is that she is not being paid for a large number of hours she has worked. Analyzing the months for which she does have the timecards has proven that. The whole issue (which I did not express as well as I could have) is that an entire month's pay records seems to have gone missing; the employer "lost" those records, and my daughter believes that she was seriously shorted in that month. At this point, the discrepancy in her earnings is anything but trivial.

                        Thank you for your response.

                        J.M. Parsons

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                        • #13
                          Ok, then have her go ahead & file a wage claim as suggested.
                          Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                          Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

                          Comment


                          • #14
                            Also, just to be clear no employee needs the timecards to prove anything. Time accounting is the employer's responsibility, not the employee's. No court is going to require that the employee have copies of the time cards. HOWEVER, as was stated, if the employee has no idea what hours were actually worked, why should the court assume that any funds are due?

                            To state the obvious, the employee should immediately start keeping track of actual hours worked at home. Do not use the employer's equipment or time to do this. A paper notebook hand written with pen works just great. If the employer is really playing games, it is likely that they willl continue to do so. Much better to wait until the employee can actually hard support the claim, by which I am NOT talking copies of time cards, but rather the employee actually keeping track of hours worked. The employer "losing" time cards is actually a very good thing as far as the employee is concerned legally.
                            "Reality is that which, when you stop believing in it, doesn't go away".
                            Philip K. **** (1928-1982)

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                            • #15
                              Originally posted by Betty3 View Post
                              Ok, then have her go ahead & file a wage claim as suggested.
                              Multiple times.
                              I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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