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socrateaser
socrateaser, Lawyer
Category: California Employment Law
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Experience:  Retired (mostly)
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I worked at Costco for 2 terrible weeks. During my orientation,

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I worked at Costco for 2 terrible weeks. During my orientation, I signed an "application" to join the union. We were raced through signing all the paperwork, not getting to read any of it. We were told to initial things that we hadn't even done or seen yet. I was hired, with many others, as seasonal/part-time, and we were told we would all be laid off the 2nd week of January, right before our probationary period ends. But, we were all paying $22 a month in union dues to Teamsters, even though we weren't members of the union, nor would we be since we'd be laid off in January. On my last day, I emailed my resignation to the manager, and the 2 top execs in the corporate office (this is a much longer and involved story than what I'm putting here).

I feel like they broke several California labor laws.

1. We would often work more than 5 hours, without a lunch, and did not consent to waive the lunch. Yet, we're not paid for a lunch if we worked less than 6 hours. Costco says that they have an agreement with the union that they don't have to pay for lunches before 6 hours. Well, I wasn't a member of the union! All I did was fill out an application to join. Nowhere in the application does it state that I am bound to any union contracts during my probation.

2. I gave them two weeks notice, but they never contacted me again to take me up on it. I feel that I should have been paid in cash, immediately (as per CA law), and certainly no later than 72 hours. But, I wasn't paid for a whole week. They said that since it took them time to figure out what I was doing, they're only paying me for one day. I think I'm owed at least 4, and likely 7.

3. They do their paychecks to a debit card. I feel (again per California law) that upon my resignation, my automatic payment should have ended. Yet, they have paid me 2 more times via the debit card.

Would love to get an expert's opinions on these matters.
Submitted: 1 year ago.
Category: California Employment Law
Expert:  socrateaser replied 1 year ago.
Hello,

1. We would often work more than 5 hours, without a lunch, and did not consent to waive the lunch. Yet, we're not paid for a lunch if we worked less than 6 hours. Costco says that they have an agreement with the union that they don't have to pay for lunches before 6 hours. Well, I wasn't a member of the union! All I did was fill out an application to join. Nowhere in the application does it state that I am bound to any union contracts during my probation.

A: The right to meal periods applies to workers covered by collective bargaining agreements. It is treated as a nonnegotiable right and federal law (LMRA § 301) “does not permit parties to waive, in a collective bargaining agreement, nonnegotiable state rights. ” Valles v. Ivy Hill Corp. (9th Cir. 2005) 410 F3d 1071, 1080 (internal quotes omitted).

So, here you're correct, and Costco is wrong (ed. op.).

2. I gave them two weeks notice, but they never contacted me again to take me up on it. I feel that I should have been paid in cash, immediately (as per CA law), and certainly no later than 72 hours. But, I wasn't paid for a whole week. They said that since it took them time to figure out what I was doing, they're only paying me for one day. I think I'm owed at least 4, and likely 7.

A: This issue is too "fact sensitive" for full analysis in this forum. You're entitled to be paid within 72 hours. Labor Code sec. 202. Waiting time penalties accrue on a daily basis. Mamika v. Barca (1998) 68 CA4th 487, 493, 80 CR2d 175, 178. This is one where you will have to file a complaint with DLSE and let them try to figure out the facts.

3. They do their paychecks to a debit card. I feel (again per California law) that upon my resignation, my automatic payment should have ended. Yet, they have paid me 2 more times via the debit card.

A: I'm not following the question here. Regardless, more than likely, if the payment was more than 72 hours after your resignation, then you're entitled to waiting time penalities, and you can file a complaint with DLSE. I'd like to be more definitive, but this is one of those areas where the employer may be able to claim that you had some commission component in your pay, and that it could not be determined with certainty until later in the work week or month. So, you'll have to file a wage claim and let DLSE try to sort it out. They are actually quite good at doing this for cases like yours.

Hope this helps.

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socrateaser, Lawyer
Satisfied Customers: 34386
Experience: Retired (mostly)
socrateaser and other California Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

To clear up about the pay to debit card...

I found this online:

Q. CAN WE HONOR AN EMPLOYEE’S WRITTEN REQUEST TO HAVE HER FINAL PAYCHECK DIRECT DEPOSITED?
A. It depends. While direct deposits of wages to an employee's bank, saving and loan, or credit union account are permissible with the employee’s written authorization, any such authorization is immediately terminated when an employee quits or is discharged. In any case, direct deposit of a final paycheck is permissible, pursuant to Labor Code section 213(d), if the employee has voluntarily provided written authorization for that specific deposit. It is important to keep in mind, however, that the rules regarding timing of final paycheck rules still apply in this situation, and employers are not relieved of compliance because they are directly depositing the final wages.

I did NOT give them permission to continue to access my debit card account after I quit. So I'm wondering if they were wrong to do that.

I don't really understand what "too fact sensitive" means as I gave you the facts. I gave them a 2-week notice, but they never returned any further phone calls to take me up on the 2 weeks. I also said that I would otherwise consider the last day worked as my last day. Since they did not respond, I consider the last day as my last day and should have been paid then, not within 72 hours.

I hope that's clearer. Thanks for your help.

P.S. I do plan on filing a complain with the labor board, I just want to make sure I'm doing everything right.

On a side note...since I'm right about the lunch breaks, there are thousands of "seasonal" employees who aren't getting paid for their missed meal periods. That sounds like a class action lawsuit, no?

Expert:  socrateaser replied 1 year ago.
Q. CAN WE HONOR AN EMPLOYEE’S WRITTEN REQUEST TO HAVE HER FINAL PAYCHECK DIRECT DEPOSITED?

A. It depends. While direct deposits of wages to an employee's bank, saving and loan, or credit union account are permissible with the employee’s written authorization, any such authorization is immediately terminated when an employee quits or is discharged. In any case, direct deposit of a final paycheck is permissible, pursuant to Labor Code section 213(d), if the employee has voluntarily provided written authorization for that specific deposit. It is important to keep in mind, however, that the rules regarding timing of final paycheck rules still apply in this situation, and employers are not relieved of compliance because they are directly depositing the final wages.

I did NOT give them permission to continue to access my debit card account after I quit. So I'm wondering if they were wrong to do that.

A: Okay, so you apparently consented in writing to direct deposit as part of your initial employment agreement. You'll have to read the consent form and the rest of your employment contract documents to determine whether or not the employer maintained the right to make the final deposit, or any subsequent deposits into your account. Were I the judge considering the matter, in the absence of an express termination date of the right to access your agreement, I would rule that the issue was a matter of good faith on the part of the employer and that the contract implied consent to make the final payment and any subsequent payments as necessary to fullfil the terms of the employment agreement and California law (i.e., that you receive full payment for your labor). If I were representing you, I would try to convince the court that the employer was in violation of federal financial privacy law -- but, those laws prohibit disclosure of financial information. They don't prohibit deposits into your account. So, I don't think that you have a viable argument here.

I don't really understand what "too fact sensitive" means as I gave you the facts. I gave them a 2-week notice, but they never returned any further phone calls to take me up on the 2 weeks. I also said that I would otherwise consider the last day worked as my last day. Since they did not respond, I consider the last day as my last day and should have been paid then, not within 72 hours.

A: You've created grounds for a dispute -- that's why it's "fact sensitive." You can argue that you were terminated due to the employer's failure to respond to your notice. The employer can argue that it has no legal obligation to respond, and that it was still considering you for possible hours during the two-week notice period. I think you probably have the better argument here, since the facts show that you were never employed after you gave notice. But, it's still arguable, and that means a judge will have to hear your testimony and that of the defendant -- and review any documentary evidence, before making a decision. There may be something in all of the facts that would cause a judge to lean one way or the other. If I were to rule right now, I would be doing you a disservice, because I do not have all of the facts at my disposal.

I hope that explains my thinking and how the judicial process works from a judge's viewpoint.

I hope that's clearer. Thanks for your help.

A: You're wecome. If my answer is satisfying, please let me know -- thanks.

On a side note...since I'm right about the lunch breaks, there are thousands of "seasonal" employees who aren't getting paid for their missed meal periods. That sounds like a class action lawsuit, no?

A: Could be, but you can also file a BOFE complaint with DLSE, and they would handle the matter for all employees. If you want to be the lead plaintiff on a class action, then you'll need to shop the case to several law firms and see if anyone is interested, before you file a complaint with DLSE.

Happy Holidays.

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