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Can an employer deduct pay (back flag) from a FLAT RATE employee if by reason of mistake an employee damages something.

Cotati, CA |

I am a flat rate auto technician. I was asked to help a hourly co-worker on his job. This was a job i was never flagged on, assigned to or even paid for. Later some issues with the repair was discovered. I was never paid for the work however my employer is deducting pay. Is this legal?

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Attorney answers 3

Posted

Normally, California law prohibits this. However, I am not sure what you mean by a flat rate auto technician. Are you an independent contractor?

Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

Ms. Marsh: Many auto techs are paid a flat rate (a set amount for a specific task) even though they are regular employees. Sometimes this results in unlawful pay practices. Please see my guide to flat-rate auto work titled "California's Flat-Rate Auto Workers Still Get Minimum Wage, Overtime, Breaks and All the Stuff Other Workers Get": http://www.avvo.com/legal-guides/ugc/californias-flat-rate-auto-workers-still-get-minimum-wage-overtime-breaks-and-all-the-stuff-othe?published=true.

Posted

Your employer may not deduct from your pay for accidental damage. This is absolutely against the law. 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.

In addition, so many flat rate auto technicians are routinely cheated out of their pay that I wrote up a guide on the subject. I urge you to read it because you may be entitled to additional compensation, interest and penalties. This can add up to a lot of money.

Please see my guide to flat-rate auto work titled "California's Flat-Rate Auto Workers Still Get Minimum Wage, Overtime, Breaks and All the Stuff Other Workers Get": http://www.avvo.com/legal-guides/ugc/californias-flat-rate-auto-workers-still-get-minimum-wage-overtime-breaks-and-all-the-stuff-othe?published=true.

Employment law is complicated and fact-specific. You may wish to consult with an experienced plaintiffs employment lawyer. 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. Click on "Find a CELA Member" and you can search by location and practice area. Many CELA attorneys represent clients throughout the state.

I hope you can resolve your situation and wish you the best.

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. ***

Helen Lou Marsh

Helen Lou Marsh

Posted

Thank you for the reference to this excellent guide. I also agree that CELA is a great resource, as is the Sonoma County Bar Association Lawyer Referral Service.

Asker

Posted

If deducting pay (or "back flag" as its called at my work) is unlawful in California why do i hear its a common practice at FLAT RATE auto shops?

Asker

Posted

My job has been "back flagging" our flat rate techs for many years. Is there a clause or loophole that allows for this?

Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

I have no idea why you hear it's a common practice. I would guess that employers say that repeatedly to employees to dissuade employees from pursuing their legal rights, which allows the employers to break the law and keep for themselves some of what should go to the employees .

Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

I cannot think of any way around Labor Code sections 2800 and 2802 or Kerr's Catering Service (which Mr. Chen mentioned in his response). There are plenty of industries that have long-standing violations of the Labor Code. For example, many car washes pay workers only for the time they are actually washing cars, but not for the time the employer requires the workers to remain on the property and wait for cars to come in. This is absolutely illegal. Many employers pay employees a salary and therefore fail to pay them overtime, but paying a salary is irrelevant to whether an employee is due overtime. What makes a difference is if the employee is exempt or non-exempt. Your best bet is to consult with one or more experienced employment law attorneys with whom you can discuss the details of your situation. Again, I suggest CELA.

Posted

Attorney Spencer is absolutely correct. In California, taking money from employees for "mistakes" they make is illegal and could subject the employer to penalties. The leading case on this issue is the Kerr’s Catering Service v. Department of Industrial Relations (1962) 57 Cal.2d 319, in which the California Supreme Court essentially held that employers may not hold employees accountable for losses, shortages, or breakage occasioned by simple employee negligence or error. These are deemed to be a routine cost of doing business which cannot be passed along to employees. Moreover, an employer may not unilaterally take money out of an employee’s paycheck to pay for such losses shortages, or breakage.

Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.

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