Recapture Of Inadvertent Payroll Overpayments

December 30, 2008

Occassions will inevitably occur where an employer makes inadvertent payroll errors. If a mistake results in an underpayment of wages owed, the employer is clearly required to rectify it. Although the employee wants the issue settled right away the employer can make it up on the following payroll. If the error involves an inadvertent overpayment of wages and the employee refuses to repay the sum involved, employers must be careful on how they recapture those funds.

We have seen where the Labor Board prohibited the recapture of the funds if a substantial time has passed before the employer realized that an overpayment had occurred. The employee, of course, always argues that he did not “notice” that he had received more than he was entitled to. In my opinion if the employer catches the error within a month or so I think it it safe to establish a written agreement that the monies will be deducted (depending on the amount owed) over a series of checks. Or in the alternative take it all back in one or two payments which I feel is the best thing to

If the employer makes a loan or an advance of wages, it may deduct the principal from the employee’s earnings, even if such deductions cut into minimum wage or overtime pay due to the employee. The employer has the discretion to decide what percentage of the employee’s pay to deduct to recoup the money owed. If an employee leaves before the amount is repayed the employer can recoup the entire balance from the last check.

The above represents the basics but when in doubt, as always, give us a call.


FMLA Forms In Conflict With California

December 22, 2008

We have been asked by several clients to

clarify the use of the federal forms for the

FMLA. Those forms permit a discussion

about the “diagnosis” and other such

information that California (CFRA) does

not permit. Since CFRA has a stricter

guideline that does not permit an inquiry

regarding the diagnosis for a serious

health condition, I would recommend

not using the federal forms and use the

California CFRA forms. In the alternative,

if you decide to use the federal forms

put an “X” (or block out) through any

portion asking for the diagnosis of the

serious health condition.

The FMLA has some major changes

effective January 16, 2009. Be careful.


Posters Required By Law

December 22, 2008

1. Industrial Welfare Commission Order

2. Payday Notice

3. Whistleblower Protections

4. OSHA-Safety & Health

5. Emergency Phone Numbers

6. Notice of Workers Comp Carrier

7. DFEH-Harassment/Discrimination

8. PDL-Pregnancy Discrimination

9. CFRA-California

10. EDD-Unemployment & Disability

11. Time off to vote

12. Equal Employment Opportunity

13. Minimum Wage (Fed-FLSA)

14. Employee Polygraph Act

15. FMLA

16. USERRA


The Required Posting Results Are In! Yes, We Have A Winner!

December 20, 2008

The answer will be posted on Monday morning. We have a winner-Jackie from the Hawaiian Gardens Casino! She separated herself from the second place runner up, Teri Schneider, who failed to mention the required poster from the EDD (Unemployment Insurance Benefits).

Thanks to all who participated!


Reminder: New Posters Required For 2009

December 16, 2008

Yep, it is that time again.  Your workplace posters are going to have to be updated because of recent changes. As an example, the Equal Employment Opportunity (EEO) poster includes required changes, according to the Office of Federal Contract Compliance Programs.

The changes required to be posted, which were approved in August, include new information on: sexual harassment, workers compensation rights and benefits, state disability insurance, and paid family leave and unemployment insurance.

An employer can be fined up to $17,000 for failing to post 16 required posters in a place most frequented by employees and applicants. The law also requires employers to provide and distribute literature that informs employees of their rights and responsibilities regarding leaves of absence and unemployment insurance benefits.

There are posters available for sale from different vendors including CalChamber. Remember, the laminated posters sold by most do not include the “Industrial Welfare Commission Posting”  that informs employees of their rights concerning breaks, lunchs, overtime, exempt and nonexempt etc. This particular posting, in my opinion, is the most important, considering all of the wage and hour class action law suits are based on violations contained within this “IWC Order” posting.

THE FIRST PERSON TO POST A MESSAGE ON THE BLOG WITH THE NAMES OF ALL SIXTEEN REQUIRED POSTERS WINS AN AUTOGRAPHED COPY OF MY BOOK.! You must be a current client to win! The results and posting will be posted on the blog Friday.


Act Quickly When One Employee Threatens Another

December 8, 2008

It doesn’t have to be difficult times for employees to be stressed out and on edge with each other. Personality conflicts have always been present and can disrupt the work environment very quickly. In addition, there can be other variables such as when an employee goes off his or her medication or experiences severe emotional mood swings thereby causing other employees to be fearful of them. Other issues such as personal traumatic events (death of a family member, separation, divorce, medical conditions, financial problems etc.) can also cause inappropriate workplace behavior to surface.

Managers and supervisors have to remember they are not doctors and should not try to second guess what is going on. Any overt threat from one employee directed at another employee must be taken seriously! Most employers have a written policy in effect regarding threats, intimidation, harassment, and violence. Follow your policy to the letter and take the appropriate action. If any “blows” are thrown the police should be notified immediately. They will come out and take whatever action they deem appropriate.

In some situations, employees may be taking prescription drugs to control their emotional and mental state and inform the employer about their medical condition. This information must be kept confidential. Do not ask the employee about the medical diagnosis because it gets into the privacy area. You can ask who should be contacted in the event an issue arises (do not ask for the relationship). If they need to be taken off of work by their doctor simply follow your leave of absence policies. In my opinion, you can also recommend a leave of absence until they are able to return to their duties and can require a doctors note certifying that they can return to their normal duties.

In the event that two employees simply cannot get along because it appears to be “bad blood” between the two, a decision may have to be made regarding BOTH employees. First, try to help them work through their differences. Second, if it does not work out, then move in a direction of severing the employment relationship. Just remember, the favorite doesn’t get to stay, and the “trouble-maker” gets to go. It’s sad but true. Lawsuits have sprung up because the fired employee comes back against the employer for either wrongful termination or a discrimination claim because the individual is in some protected class group.

As always, if you have any questions please feel free to give us a call.


Be Careful! Announced Lay Offs Can Create Problems!

December 2, 2008

We are going through some tough times and employees are aware that lay offs are a distinct possibility. Employers are trying to be mindful of the emotional impact on their employees (one-in-four employees believe they may be layed off). The end result is businesses may have to cut a few jobs to save a few jobs in order to survive.

We are receiving calls everyday on the best course of action to follow when an employer is forced into  laying off staff members. The following points are important to remember.

1. Unless there is a union environment seniority does not matter. An employer has the right to choose the “best team moving forward.”

2. Do not announce a “Lay off is coming!” Employees, when on notice that they may be leaving their jobs, have been known to have “accidents,” while others suddenly recall they may have been harassed in some matter, subsequently complain, and then want to later argue that they were laid off in retaliation.

3. Keep the intended lay off list VERY CONFIDENTIAL!

4. When “Older” workers are part of the lay off picture simply remember it is not an age issue. It’s a performance issue “if” they had not been doing their job. Hopefully the proper documentation is in place. If not, the overall lay off picture should reflect an even distribution based upon age. Please understand that I never want an employer to focus on age. The focus should be on the individuals prior performance and how that individual will be able to handle the increased workload moving forward.

5. There are situations when an employee has worked for the employer for a very long time and the employer feels obligated to give the exiting employee some sort of severance package. In exchange for that extra check the employer wants the employee to sign a release. Keep in mind, if the extra check is for only two weeks pay, it may not be worth trying to have them sign the release. If they are contemplating bringing an action two weeks pay is not going to deter them. If they weren’t thinking in that direction and you shove a release under their nose, they may, for the first time, think they have a case. Please discuss any potential severance packages with me.

6. LARGER employers (thousands of employees) may have other legal requirements under the “Warn Act” and need to call me for the specific requiements to conduct lay offs.

Finally, I wish the best for all of you and hope, as you do, that the economy will begin to turn around soon.