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My employer just told me I have been getting a premium

My employer just told...

My employer just told me I have been getting a premium overpayment since 2008. They are adjusting my salary which amounts to about $400 per month. Is this legal? What are my options

Lawyer's Assistant: Because employment law varies from place to place, can you tell me what state this is in?

California

Lawyer's Assistant: Has anything been filed or reported?

They sent me an email this morning

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

I am 60 years old and if I could retire now to keep the money I am currently getting i would

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Answered in 1 minute by:
9/11/2017
Legal Eagle
Legal Eagle, Lawyer
Category: Legal
Satisfied Customers: 13,470
Experience: Licensed to practice before state and federal court
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Hello! I am a licensed attorney, admitted to practice in state and federal court. I have a nearly 100% satisfaction rating so all that means is that you can count on me to help today.Firstly, this appears to be a violation of the implied covenant (promise) of good faith and fair dealing. Under the Uniform Commercial Code Section 1-304, every contract comes with implied promises from both parties that they are going to be acting fairly toward one another. The failure of one party to act fairly toward the other can result in a breach of contract. To facilitate your situation, there’s a site that I’ve used in the past where you can find a good template for advising of a breach of contract (click here). It's a bit easier (and cheaper) than going through litigation and I have seen it be effective in the past. If you send this letter and they do not respond, then you may want to consider bringing a lawsuit after that because it will be clear they will not be willing to settle the issue.

Secondly, CA law prohibits an employer from taking anything out of your check that is not related to state and federal withholdings or things that you agreed to (e.g. retirement, benefits, etc.). Accordingly, You may want to consider just writing a cease and desist letter advising that they would be breaking the law by attempting to recoup the money nearly ten years after the fact. Lawyers use letters like these often to enforce their client’s rights. Here’s a website that has a good template (click here). It only costs $10 and it is way cheaper than litigation.

Also, although I provided an initial answer, it’s important that you are 100% satisfied. If you feel I have done so, please rate me 5 stars and let me know if you have any follow up questions. As a side note, you can also click here in the future to request me individually.

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Customer reply replied 10 months ago
This is what I received from HR
You are correct in that the shift premium pay was not part of the compensation package that was awarded to you at the beginning of each year because shift premium pay is separate from your normal base pay.Our records indicate that back in September 2008 through January 2009 you took on a temporary assignment as a Supervisor in M&C, likely a Shift Supervisor position, which is a qualifying position for shift premium pay. When the temporary assignment ended in January 2009, the shift premium pay should have also ended; however the process to end the shift premium pay was inadvertently missed. This resulted in an overpayment year over year totaling approximately $38,000. As Stephanie noted below, our Senior Leaders have agreed to forgive the entire overpayment amount and to correct the error effective 9/1/2017. Please note that it is not an option to decline this correction of payment.So would ths still be considered a breech of contract? Am I within my rights to say I will retire now before the loss of pay is calculated?
Law Educator, Esq.
Category: Legal
Satisfied Customers: 125,977
Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
Verified

Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.

I am a DIFFERENT CONTRIBUTOR, as it seems you asked for another contributor.

While the employer cannot deduct the over payment from your wages, in accordance with state law, even with your consent, they do not have to continue giving you that payment into the future. Since they have agreed, because of CA state law, to forgive the over payment, that is no longer an issue. As far as your retirement, you could retire only if you meet the retirement plan criteria for retirement. However, it says they agree to correct the error effective 9/1/17 and if you are not eligible based on other criteria to retire, then retirement is not an option. Also, you need to check your retirement plan as well, because if your retirement pay is based on your highest 3 years, staying on and working, even though they are taking the premium from you, should not impact your retirement.

Please do not forget to leave positive feedback by clicking on the 5 stars at the top of your page, as the experts are not employees of the site and get no credit for spending time with customers unless they leave positive feedback. Thank you.

Law Educator, Esq.
Category: Legal
Satisfied Customers: 125,977
Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
Verified
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Customer reply replied 10 months ago
Thank you
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DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

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