They held my final paycheck until I paid for the key check or money order , but I told them to deduct it from my final check . Initially , I did mail out the key in an envelope with a tracking number and they said it was not in there , which is hard for me to believe . Earlier on Avon . com , I read that I should not have paid for the business loss as it is illegal to do that to an employee . Is this true even though I signed a contract ? What section of the labor ELSE 1 application would I put this in and would I have to submit another document to go with this since it says below section 36 " additional documents should be submitted for this section " ? Can I send e - mails stating that they I gave them the OK to deduct the $ 50 for the key ? How about for waiting penalties , do I just check the box # 37 ?
Sorry for the above typo, I meant "Avvo.com" and "DLSE 1." If my claim for the $50 deduction is valid would this be put in #36 under OTHER or UNLAWFUL DEDUCTIONS?
Employment / Labor Attorney
Your employer cannot charge you for losing the bank key and it may not withhold your final pay check until you pay it. No, the employer cannot make you pay for your mistake. The courts and legislature understood that mistakes are inevitable, and the employer is in a better position to absorb the loss than is the employee. An employer cannot make the employee into an insurer of the employer’s business.
In Kerr’s Catering Service v. Department of Industrial Relations, 57 Cal. 2d 319 (1962), the California Supreme Court stated that “some cash shortages, breakage and loss of equipment are inevitable in almost any business operation. It does not seem unjust to require the employer to bear such losses as expenses of management when it is presently the unchallenged practice to require him to bear, as a business expense, the cost of tools and equipment, protective garments and uniforms furnished to the employee . . . . ”
“Furthermore, the employer may, and usually does, either pass these costs on to the consumer in the form of higher prices or lower his employees’ wages proportionately, thus distributing the losses among a wide group. In addition, the employer is free to discharge any employee whose carelessness causes the losses . . . .”
In addition, California Labor Code sections 2800 and 2802 require an employer to indemnify an employee for expenses and losses incurred on the job:
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.
However, an employer has the right to discipline an employee for mistakes on the job, all the way up to firing the employee.
No one can answer your question about signing the contract without seeing the language of the contract you signed. But even if you agreed to allow the employer to deduct certain expenses from your pay, California law would hold that agreement unenforceable because it is against public policy.
Your employer should have paid you your final check on time. California law requires employers to pay an employee's final wages at the time the employer ends the employment, or within 72 hours if the employee resigns without giving 72 hours notice. "Final wages" consist of regular pay, overtime pay, accrued and unused vacation pay, PTO, commissions that can be calculated, some bonuses and perhaps other components. It does not include unused sick leave.
If the employer does not pay as required -- either because it was waiting for the $50 for the key or almost any other reasons – there is a penalty against the employer and in favor of the employee: the employee’s pay continues as if the employee were still working, every day until the employer pays in full, up to a maximum of 30 days. The employee is entitled to interest at 10 per cent per annum on the unpaid amount. Also, if the employee must go to court to get his or her pay, then the employee is awarded reasonable attorney’s fees and costs of suit.
Finally, if you are having trouble filling out the DLSE 1 form, you can seek help from the DLSE web site DLSE.gov or by calling the local DLSE office.
twitter.com/MikaSpencer *** 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. ***
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