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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 33369
Experience:  Retired (mostly)
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Hello. I started working as a salaried employee for a commercial

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Hello. I started working as a salaried employee for a commercial property management company in California back in April of 2011. In May 2013, per my request, my status was changed to part-time position on an hourly basis, and commission basis on sales and leasing. A letter of Understanding was executed for the first, and an Independent Contractor Agreement for the latter. After a disagreement on commission owed, I decided that I could no longer work for the company and submitted my resignation on Wednesday July 31st. My employer said he would submit my commission check with my last 8 hours of part time work performed on August 5th, one of the company's two regular paydays. Since there was no deposit made to my bank this morning, I sent him an e-mail asking if he had sent a paper check instead. This is the response I received:

"Good morning Gisela.

After our meeting yesterday in which you tendered your resignation from the company I reviewed your file to process your final check.

My records indicate that CMG owes you 8 hours of pay for the period ending 7/31/2013 or $240.

I am willing to pay you 65% of the leasing side of the commission for Ross atXXXXXeven though it was a broker referral. Total commission due CMG is $1,782, half to the leasing side is $891, and 65% of that $579.15.

I believe the total owed to you from CMG is $819.59.

The companies PTO policy allows an accrual rate of 3.33 hours per month to a maximum of 5 days for the first year and 6.66 hours per month to a maximum of 10 days. My records indicate you earned 16 days of PTO through the course of your employment.

My records indicate you were absent the following days in 2011 (9/29, 9/30, 10/3, 10/4, 10/5, 10/6, 10/7 and 11/11, 2012 (3/30, 5/30, 5/31, 6/1, 7/27, 8/10, 11/30, 12/26, 12/27, and 12/28), and 2013 (1/24, 1/25, 3/29, 4/5, 4/8, and 4/20) for a total of 24 days.

If I multiply the 8 days times 8 hours you owe a total of 64 hours for a total of $1,920.

$1,920 - $819.59 = $1,100.41 (amount owed by you)

Please let me know if you disagree with anything and indicate when CMG can expect to be paid. "

Please note that I never received a breakdown of PTO in my pay stubs, and I asked him several times to let me know how much, if any, time I had left for PTO. He always answered that he was keeping track of it and that he would start entering it in our paycheck stubs. Do I have any recourse? Thanks in advance.
Submitted: 11 months ago.
Category: California Employment Law
Expert:  socrateaser replied 11 months ago.
Hello,

Employers may deduct from a salaried basis employee's salary for unexcused absence for full days on which work is not performed due to “personal reasons, other than sickness or disability.” See 29 C.F.R. § 541.602(a). Improper deductions operate to convert the employee into a nonexempt hourly employee, who is entitled to overtime under California law at the "regular rate" (i.e., salary divided by 40 hours times 1.5 or 2, dependent upon number of hours worked in any day or seven-day rolling workweek). The failure to maintain hourly records would be taken against the employer. Your testimony is sufficient to establish that you routinely worked substantial overtime hours.

California law prohibits an employer from offsetting an employee's alleged debts to an employer by deducting it from wages or salary already earned by the employee. See Labor Code Sec. 221; Barnhill v. Robert Saunders & Co. (1981) 125 CA3d 1, 6; Phillips v. Gemini Moving Specialists (1998) 63 CA4th 563, 572.

Given all of the above, you have two separate legal arguments: (1) the employer cannot demand payment from you for the alleged overpayment of salary -- it must sue you to enforce your alleged debt; (2) If any of the personal days off were not covered by your PTO or were due to your sickness or injury, then those days must be deleted from the employer's calculation of your alleged obligation.

For each of the above, you recourse is to file a wage claim with the Division of Labor Standards Enforcement (DLSE).

You could also simply tell the employer that you disagree with its rationale for the above-described reasons, and that unless it immediately tenders payment in full, you will file a complaint with the DLSE and let the Labor Commissioner decide who's position is legally correct.

Hope this helps.
Customer: replied 11 months ago.

Thank you. So to clarify: In the two months I was on hourly, I never worked over time. The two years prior I was salaried, and I did work overtime with no extra pay. Also, shouldn't PTO (some taken as vacation days) have been deducted from the paycheck associated with that pay period?


 


I am afraid I am not clear about your Item (2) . If, as according to him my personal days were in excess of what was allowed company policy, he must delete them from my debt?


 


 

Expert:  socrateaser replied 11 months ago.
So to clarify: In the two months I was on hourly, I never worked over time. The two years prior I was salaried, and I did work overtime with no extra pay.

A: If you are asking whether or not you could collect for overtime during those prior two years, then the answer is "yes."

Also, shouldn't PTO (some taken as vacation days) have been deducted from the paycheck associated with that pay period?

A: Yes. This suggests sloppy bookkeeping by the employer, which makes all of their records suspect to the court. However, this doesn't necessarily mean that the employer is not entitled to recovery for a clerical error. What it suggests is that the record of your absences may be fabricated -- otherwise, the employer would have deducted them when they were taken.

I am afraid I am not clear about your Item (2) . If, as according to him my personal days were in excess of what was allowed company policy, he must delete them from my debt?

 

A: Yes, I don't understand what I wrote, either. Let me do it by example:

 

1. You are a salary-exempt employee;

2. Your employer grants 10 days of PTO available each year that you can use for either vacation or sickness;

3. Your employer provides no separate sick leave benefits;

4. You take 14 days off during the year; 7 days of vacation, and 7 days due to sickness;

5. Because the PTO policy is a bona fide plan which pays compensation for sick leave, the employer can deduct for sick leave or vacation or other personal use time, which excees the 10 PTO day maximum.

6. Therefore, the employer can deduct one day of pay for 10 - 14 = -4 days, which were not covered by the PTO policy.

7. However, under the same facts as above, if the PTO policy expressly does not cover sick leave (only vacation is covered), then the employer cannot deduct for the 7 sick days, and the calculation would be: 10 - 7 = 3, which means you would still have 3 PTO days available for use.

 

Hope this helps.

socrateaser, Lawyer
Satisfied Customers: 33369
Experience: Retired (mostly)
socrateaser and other California Employment Law Specialists are ready to help you
Customer: replied 11 months ago.

Thank you very much for your help. Wish me luck. If I need a final review, I will come back here and try to reach you. Of course, I will be happy to pay extra for that.


 


Have a good day.

Expert:  socrateaser replied 11 months ago.
You're welcome and good luck!

Note: Your positive rating of my service is greatly appreciated.

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