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NA
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Category: Legal
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Experience:  NA
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Orders issued by the California Franchise Tax Board cannot

Customer Question

Orders issued by the California Franchise Tax Board cannot be implemented until the first pay period that ends at least 10 days after receipt of the order.

From the employee's prespective, what can be done if the above is not followed by an employer?

If employer does implement the first deduction on the 2nd day or receipt, what penalities does the employer incur?

There are plenty of websites that mention what the employers must do and cannot do, but after hours and hours of searching, I can't find any mention of what happens when employers don't follow the instructions. Any point in the right direction would be a greatly appreciated.
Submitted: 5 years ago.
Category: Legal
Expert:  NA replied 5 years ago.
Thank you for your question.

I read through the California Code of Civil Procedure sections which govern wage garnishment.
While the code prohibits employers from withholding prior to the 10th day as outlined in the section below,
this section of the code does not address the penalities an employer faces for not complying.

Since there are no specific penalties for violation, the employer would simply be in violation
of the California state Labor Code, which governs how employees must be paid.

Section 204-207 of the Labor Code requires the regular payment of employees, within a certain date of the work they perform.
If you performed work, but were not paid for the full amount of the work, then you are entitled
to that money, along with penalties. The penalities may accrue daily and can add up significantly.

Section 215 of the Labor Code actually makes it a misdemeanor to fail to pay an employee when they are supposed
to be paid by law.

If the employer had no right to garnish your wages, but did so anyway, you can file a complaint with the state.

I have provided the relevant code sections for you below.

If you need any further help or clarification please don't hesitate to let me know.

Code of Civil Procedure on Withholding:

706.078. (a) Except as provided in subdivision (b), the employer
shall not withhold pursuant to a withholding order for taxes from
earnings of the employee payable for any pay period of such employee
that ends prior to the 10th day after service of the order.

(b) A "jeopardy withholding order for taxes," which shall be
denoted as such on its face, is a withholding order for taxes that
requires that the employer withhold pursuant to the order from
earnings due to the employee at the time of service of the order on
the employer and from earnings thereafter due. A jeopardy
withholding order for taxes may be issued only where the state has
determined that the collection of a state tax liability will be
jeopardized in whole or in part by delaying the time when withholding
from earnings commences.


Labor Law on Wages:

"In California, wages, with some exceptions (see table below), must be
paid at least twice during each calendar month on the days designated
in advance as regular paydays. The employer must establish a regular
payday and is required to post a notice that shows the day, time and
location of payment. Labor Code Section 207 Wages earned between
the 1st and 15th days, inclusive, of any calendar month must be paid no later than the 26th day of the month during which the labor was performed, and wages earned
between the 16th and last day of the month must be paid by the 10th
day of the following month. Other payroll periods such as weekly,
biweekly (every two weeks) or semimonthly (twice per month) when the
earning period is something other than between the 1st and 15th, and 16th
and last day of the month, must be paid within seven calendar days of
the end of the payroll period within which the wages were earned. Labor Code Section 204"

215. Any person, or the agent, manager, superintendent or officer
thereof, who violates any provision of Section 201.3, 204, 204b, 205,
207, 208, 209, or 212 is guilty of a misdemeanor. Any failure to
keep posted any notice required by Section 207 is prima facie
evidence of a violation of these sections.

Here's the link to information on how to file a complaint: http://www.dir.ca.gov/dlse/Policies.htm

Again, please let me know if you need more information.
_______________
If this answer was helpful, please press the green "Accept" button. You may still ask follow up questions and I'll be happy to provide additional information and clarification.


NA, NA
Category: Legal
Satisfied Customers: 184
Experience: NA
NA and 14 other Legal Specialists are ready to help you
Customer: replied 5 years ago.

Thank you very much for your answer. I did find the mentioned Labor code above as well verbage that makes it appear that the law gives an employer a loop hole by stating an employer who complies with any written order or written notice which purports to be given or served in accordance with the provisions of this chapter is not subject to any civil or criminal liability for such compliance unless the employer has actively participated in a fraud.

Which of course the employer didn't commit fraud. The payroll admin is just incomepetent in handling the garnishment the right way and they have no set procedure in how to ensure they don't overdeduct any given order. In my friends scenerio the order was for $150 for late car registration, which if entered correctly, would have been taken out in 1 paycheck and the order been fullfilled. I understand mistakes happen, but at the same time, they should be rectified appropriately. Especially when their $600 error has caused a hardship for the employee. The employer's response was sorry for the error, but you will have to get your money back from the DMV, which takes 6-8 weeks.

 

Can I ask you one more question? So let's say that since this error of $600 makes it so the employee can't pay his rent, could the employer be responsible for any fees that the employee would incur?

 

 

Expert:  NA replied 5 years ago.
Without knowing all of the facts I can't provide specific legal advice, but to start, I would argue that the employer did not actually comply with the written order if they withheld for any pay period that ended prior to the 10th day after service of the order.

California agressively pursues cases like this. If the employer is being difficult and the employee is not concerned about burning that bride, they could consider taking it to the Labor division and seeing if they can help.

Regarding the damages, depending the facts, the employer could potentially be responsible for the fees the employee incurred. In cases like these it unfortunately often becomes a practical issue. If the employer is unwilling to pay the fees the recourse is to go to small claims court, which can obviously create issues in the work environment down the line.

If the employee is considering either of these options I would urge them to contact a labor attorney in California to discuss the case in more depth.

The California state bar and the bar associations of many California counties offer lawyer referral services, often with low cost initial consultations. If you need help finding one in the employee's county please don't hesitate to ask.


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