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Over Used PTO California

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  • Over Used PTO California

    We allow our employees to take up to a week of advance PTO before they have accrued it. If for any reason the employee is terminated and has a negative PTO balance we will deduct that from their final check. However I have a California employee who is guilty of this and I know California is highly protective of their employees so my question is is it legal to deduct this over usage of PTO from this terminated CA employee's check?
    Thanks!

  • #2
    Not legal in CA. You can take the employee to court and try to recovery that way.

    At the risk of stating the obvious, the correct solution is to not let the employee go negative in the first place.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

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    • #3
      I 100% agree with DAW. Withholding money from the cheque would result in big issues for you = best to do it the legal way in California... and try and win back lost money in court.

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      • #4
        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.

        http://www.dir.ca.gov/dlse/faq_vacation.htm
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