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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
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Experience:  Significant experience in all areas of employment law.
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Part time employee quits without prior notice. Hourly paycheck

Resolved Question:

Part time employee quits without prior notice. Hourly paycheck still paid for the pay period and given to the employee when they left the building since it happened to coincide with the last day worked. But the employer was unaware that the employee planned never to return. So employee was paid partially for the pay period. After employee left it was discovered that the employee had not done any work during the pay period and made up tasks completed that had nothing to do with their job position. Is the employer still facing a penalty if the final reconciliation check was sent at 31 days due to an investigation of the work performed, and the hours were properly reported whether or not they were performing their job.
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 1 year ago.
Good evening and thank you for entrusting me to answer your question. I will do everything I can to assist you.

I think I am having a little difficulty understanding the situation. If the employee received an hourly paycheck for the last pay period on their final day, then what amount was left for the employer to pay?

What do you mean by paid "partially for the pay period"?

Lastly, in the end, did it turn out that the employee actually DID work the hours but investigation into this fact is what led to the delayed last payment?

If you would be so kind as to clarify these points for me that would allow me to provide the best possible answer to your question. Thank you so much for your patience and assistance. I very much look forward to helping you on this matter.
Customer: replied 1 year ago.

Partially paid because 1) the hourly rate had to be adjusted and 2) taxes had not been taken out of the check for $450. When I gave this check to employee I had no idea she was quitting. (she claimed I fired her too). I gave her this check under the belief I was paying her for the second pay period, not the first.


 


Yes, as it turned out she did work the hours. Work is a loose term. She presented her duties which were completely fabricated and not even applicable to her job description. Are we employers basically obligated to pay hourly rates even though they are not working whatsoever? Our only recourse is firing the employee? We are not able to reduce payment based on failure to perform?

Expert:  Patrick, Esq. replied 1 year ago.

Cathy,

Thank you so much for your reply and clarification.

You are correct that employers must pay for all time worked, regardless of whether it is productive or the employee is "slacking off" on the job. There is an important public policy behind this general principle, which is that if employee wages were subject to reduction if they did not work hard enough, that would effectively give employers carte blanche authority to retroactively adjust wages, rendering most wage agreements meaningless.

I certainly appreciate your concern and frustration in the present instance and agree it is unfair to require payment made to an employee who was not performing, but to permit a reduction in this instance would leave the door open to abuse and undermine the very purpose of wage agreements on a broader scale. Thus, the only instance in which an employee may be denied pay is if actual time card fraud is suspected (i.e., the employee didn't even show up to work and simply wrote down non-worked hours) Otherwise, the employer's sole recourse is termination.

As far as the payment of final wages is concerned, employees who quit must be paid within 72 hours of their notice of intent to quit, and employees who are fired must be paid immediately. However, wages that are subject to legitimate dispute are NOT subject to the penalty assesment for untimely payment. See Amaral v. Cintas Corp. No. 2, 163 Cal. App. 4th 1157 (2008) (finding "a good faith dispute that any wages are due will preclude imposition of waiting time penalties under Section 203.")

Thus, if you had denied payment of additional wages due to a legitimate suspicion of timecard fraud, no penalties would attach. However, if you simply denied payment because you didn't think their work warranted it (understandable on a personal level, but simply not in compliance with the law), the waiting time penalty would unfortunately apply.

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes to you and thank you so much for coming to Just Answer.

Customer: replied 1 year ago.

Hi again - actually the employee never directly quit to me (owner), store manager or anyone else. It was not in writing. Her boyfriend wrote an email advising it the morning after her last day. When I received an email from her a week later she denied even knowing about her boyfriend's email. She stated she was replying to an email I had sent her directly. She did not directly contact anyone; we received notice a week or so later advising she had file a claim for unemployment because she had been fired.


 


Am I grasping at straws?!

Expert:  Patrick, Esq. replied 1 year ago.
Cathy,

Thank you very much for your reply and please forgive my delay in getting back to you, but I wasn't anywhere near a computer for most of yesterday.

You are not grasping at straws here. The precise timing of when an employee quits is a "question of fact," meaning it is subject to interpretation based on the unique facts of the situation. If you can argue that you were not reasonably put on notice that this employee had quit until you received notice of her unemployment benefits, then you can argue that the waiting time penalties would not begin to accrue until that point in time. This may result in less money owed in waiting time penalties, assuming you owe any at all based on my analysis of the law set forth above.

Put another way, arguing that you didn't know she quit would not in itself get you out of waiting time penalties in their entirety, but you may be able to argue that they did not begin to accrue until you were reasonably put on notice of her quitting, which was not until you received actual notice of her UI claim because before that her status of employment was unclear.

Again, please feel free to let me know if you have any further concerns. If I have answered your question, I would be very grateful for a positive rating of my service so that I may receive credit for assisting you.

Kindest regards XXXXX XXXXX you so much for coming to Just Answer.
Patrick, Esq., Lawyer
Satisfied Customers: 7649
Experience: Significant experience in all areas of employment law.
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Patrick, Esq.
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