I was working at a restaurant/ Concert venus and on a really busy night I had some tables walk out on me. I had told my boss that night I would pay for the walkout not discussing how (payment plan). He ended up letting me go for that reason with no warning. He had never said to any of the waitress that if that had happened he would let us go, he said verbally we would pay for it. Now that he let go I cant afford to pay it, I cant even work to there to pay that off. Ive never signed anything saying if we get walkout I would pay. Legally is he allowed to take it out of my pay check ? I never consented that.
Help me please they keep giving me the run around. This happened one day before pay day, So now I should have 2 checks there. They are trying to say they combined my pay period check and my last check. Thats not true because my pay period check was already at the restaurant.
Employment / Labor Attorney
If what you say is accurate, then your employer is violating a number of California wage and hour laws.
The Division of Labor Standards Enforcement (DLSE), which is a sub-agency within the California Department of Industrial Relations. http://www.dir.ca.gov/dlse/. The DLSE enforces California's wage and hour laws, including those pertaining to overtime, rest and meal breaks, and more.
First, employers may not make employees responsible for business losses. California Labor Code sections 2800 and 2802 require an employer to indemnify an employee for expenses incurred on the job. I’ve pasted the two statutes below:
2800. An employer shall in all cases indemnify his employee for
losses caused by the employer’s want of ordinary care.
2802. (a) An employer shall indemnify his or her employee for all
necessary expenditures or losses incurred by the employee in direct
consequence of the discharge of his or her duties, or of his or her
obedience to the directions of the employer, even though unlawful,
unless the employee, at the time of obeying the directions, believed
them to be unlawful.
(b) All awards made by a court or by the Division of Labor
Standards Enforcement for reimbursement of necessary expenditures
under this section shall carry interest at the same rate as judgments
in civil actions. Interest shall accrue from the date on which the
employee incurred the necessary expenditure or loss.
(c) For purposes of this section, the term “necessary expenditures
or losses” shall include all reasonable costs, including, but not
limited to, attorney’s fees incurred by the employee enforcing the
rights granted by this section.
Second, your employer cannot deduct anything from your wages without your written consent. Even with your written consent, some deductions will still be illegal. Please take a look at the Division of Labor Standards Enforcement's web page on illegal wage deductions: http://www.dir.ca.gov/dlse/FAQ_Deductions.htm
Finally, your employer MUST pay you your full wages at the time of termination. If it does not, you may be entitled receive substantial penalties plus interest, as well as your wages. If you have an attorney help you get the money due to you, you will be entitled to reasonable attorney's fees and litigation costs.
The link for information on filing a claim with the DLSE is here: http://www.dir.ca.gov/dlse/howtofilewageclaim.htm.
Employment law is complicated and fact specific. You may wish to speak with an experienced plaintiffs employment attorney. To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org, and you can search for attorneys by location and practice area.
I hope you can resolve your situation and wish you the best.
*** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***
Quoting from the website @ the first link below:
"Employers may not deduct costs from employee's paychecks related to breakage, cash shortage, equipment loss or other simple acts of negligence. However, an employee may be disciplined or terminated for such acts depending on the company policies and procedures. If an employer can prove gross negligence, willful destruction, dishonesty or an employee admits to such, there may be circumstances in which the employer may deduct such losses from the employee's paycheck. In general however, California considers ordinary losses and cash shortages to be part of the costs incurred by the employer operating the business."
Accordingly, if it was a "really busy night" and the fact that you had people walk out was not caused through your gross negligence or intentional misconduct on your part, and you did not agree to the deduction from your wages in writing, it is unlikely that your employer has a legal right to withhold anything extra from your final checks to cover the losses.
Moreover, please note that if the employer does withhold your wages, you challenge the employer on it, and it's decided that the deduction was wrongful, then (in addition to the wages owed) you may be able to recover waiting time penalties equal to up to 30 days of additional wages pursuant to Labor Code Section 203.
I would suggest that you try to consult with an experienced employment attorney in your vicinity -- so that you can have a private, privileged conversation about the facts and circumstances -- ASAP. You will find that many employment/labor attorneys on Avvo offer free 30-60 minute consultations, and you may want to reach out to one of them or to the firm listed at the second link below for a FREE CONSULTATION.
Good luck to you.
Any answer or other information posted above is general in nature and is not intended, nor should it be construed, as legal advice. This posting does not create an attorney-client relationship between you and the posting attorney, and you are urged to engage a qualified attorney who is licensed to practice in the relevant jurisdiction.
Under California law, your employer cannot legally make a deduction from your wages if, by reason of mistake or accident a cash shortage, breakage, or loss of company property/equipment occurs.
California courts have held that losses occurring without any fault on the part of the employee or that are merely the result of simple negligence are inevitable in almost any business operation and thus, the employer must bear such losses as a cost of doing business. (For example, if you accidentally drop a tray of dishes, take a bad check, or have a customer walkout without paying a check, your employer cannot deduct the loss from your paycheck.)
There is an exception to the foregoing contained in the Industrial Welfare Commission Wage Orders that purports to provide the employer the right to deduct from an employee's wages for any cash shortage, breakage or loss of equipment if the employer can show that the shortage, breakage or loss is caused by a dishonest or willful act, or by the employee's gross negligence. What this means is that a deduction may be legal if the employer proves that the loss resulted from the employee's dishonesty, willfulness, or grossly negligent act. Under this regulation, a simple accusation does not give the employer the right to make the deduction. The DLSE has cautioned that use of this deduction contained in the IWC regulations may, in fact, not comply with the provisions of the California Labor Code and various California court decisions. Furthermore, DLSE does not automatically assume that an employee was dishonest, acted willfully or was grossly negligent when an employer asserts such as a justification for making a deduction from an employee's wages to cover a shortage, breakage, or loss to property or equipment.
California Labor Code Section 224 clearly prohibits any deduction from an employee's wages which is not either authorized by the employee in writing or permitted by law, and any employer who resorts to self-help does so at its own risk as an objective test is applied to determine whether the loss was due to dishonesty, willfulness, or a grossly negligent act.
If your employer makes such a deduction and it is later determined that you were not guilty of a dishonest or willful act, or grossly negligent, you would be entitled to recover the amount of the wages withheld.
Additionally, if you no longer work for the employer who made the deduction and it is decided that the deduction was wrongful, you may also be able to recover the waiting time penalty pursuant to Labor Code Section 203.
The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author (who is only admitted to practice law in the State of California). For specific advice about your particular situation, consult your own attorney.