Workers Have Recourse When Checks Bounce
Q: We are paid twice a month, about the 15th and the last day of the month. On Jan. 13 and on Feb. 28, our paychecks bounced. After that, we demanded cashier’s checks from our employer because of the hassle of going to the employer’s bank, verifying sufficient funds, cashing the paychecks and then going to our own banks to make deposits.
Since then, our pay has been late four times. We suspect our employer has discovered “free” money and/or is a total control freak, because our sales have been excellent. Throughout this, we have endured fees for depositing bad checks, extra interest, credit dings and other turmoil.
Our most recent pay period was the last straw. The pay was nine calendar days late and drawn on regular checks. We filed a complaint with the labor board, which allegedly will investigate and levy a stiff fine. But what about restitution for the employees? We are floating the idea of taking one hour of overtime pay or compensatory time off for each day a check is late or bounces. Is there any legal redress?
--J.M., Atwood
A: It is a criminal violation for any employer that fails to pay employees in a timely manner at least twice a month or bounces paychecks.
Whether you go the Labor Commissioner or directly to the district attorney’s office, the result is the same criminal prosecution. It may end up in possible fines that go to the State of California or imprisonment. In any event, it does not result in money going into your pocket unless there is still compensation owed to you.
Compliance with the Labor Code is, according to certain cases, presumed to be part of every employment contract. If your employer fails to comply with these rules, technically they are in breach of their contract with you. You accordingly, could have a claim against them for breach of contract.
Additionally, if the employer retaliates against you in any way by laying you off or firing you because of your complaints about their unlawful practices, you would have an additional “tort” claim of wrongful termination or retaliation. Through this type of claim, you might not only recover your out-of-pocket damages, but also punitive (punishment) damages as well.
If you are simply tired of your employer’s repeated violations of labor practices and you want to make a move to another employer, you may want to document your complaints to your current employer and wait for the retaliation to come. If you can document the linkage between your complaints or refusal to work under such improper conditions and their retaliation against you by reducing your work, changing your assignment, laying you off or firing you, you would have a viable tort claim.
According to the Labor Code, an employer must reimburse an employee for business expenses, which may include any expenses that you have incurred for bounced checks.
There is another procedure that allows you to recover three times the amount of a bounced check up to $500 if the writer of a check fails to pay you the amount of the bounced check within 30 days of your sending them a certified notice of their violation.
The last option that you might have is to simply quit and seek employment with a more reputable employer.
--Don D. Sessions, Employee rights attorney, Mission Viejo
Air Is Cleared but a Storm Brews Later
Q: My work holds “rap sessions,” every two to three months. In these sessions, the subordinates are expected to express their thoughts on how well the store is managed. They are headed by our district manager, and they are supposed to be confidential. However, information from the rap sessions has leaked out and all hell broke loose between one subordinate, the manager and other employees. Now, the subordinate is afraid of retaliation from the manager. What should we do?
--T.S. Fullerton
A: This is a rather common problem in many work groups. In an effort to air employee problems and concerns, and to generate suggestions for improvement, managers hold open discussion groups. This is a variation on a strategy known as “sensitivity training” (also called T-groups) that was popular in the early 1970s.
The difficulty with all such discussion groups is the lack of anonymity and the possibility that employees might be singled out for retaliation. That is why T-groups should be run by trained professionals who can prevent problems such as the one your work group is experiencing.
My suggestion is that your district manager try another technique that will get the same information about employees’ thoughts and suggestions, but will preserve employee anonymity. Suggest that your manager replace the “rap sessions” with anonymous, written suggestions, placed in a locked suggestion box that only the district manager can access. Another alternative is to conduct brief, anonymous employee surveys. Or have an employee survey administered by an outside consultant to ensure anonymity. Employees will still be heard, but the possibility of retaliation against individuals will be eliminated.
--Ron Riggio, Professor of industrial psychology, Cal State-Fullerton
