Worker Cannot Be Made to Pay for a Business Loss
Q: My niece worked for three weeks driving a van. At the end of that time, she had a small accident. The company refused to pay her, saying the damage exceeded her paycheck. Is this legal?
--J.S., Mission Viejo
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A: According to California law, an employer cannot make an employee liable for business losses. Even if your niece was negligent, the employer cannot deduct losses from her paycheck.
Her employer could sue her, but she could probably argue that she did not receive adequate training to drive the van. She might even be able to claim that the company was negligent.
The employer might be justified in terminating her for negligence, but it is required to give her a final paycheck on the date of termination. If the company fails to do that, it can be assessed a “waiting time penalty” of up to 30 workdays of her salary.
The California labor commissioner’s office will help collect her final pay. She should mention that she is entitled to “waiting time penalties” as well.
I would suggest contacting the employer with this information before filing with the state agency. Once informed of the law, the company might pay voluntarily.
--Don D. Sessions
Employee rights attorney
Mission Viejo
Notice Required Before Deduction
Q: Something happened in my workplace that strikes me as sleazy, if not downright illegal.
I work for a large corporation that offers three weeks of vacation after five years of employment.
One of my co-workers left the company in August after 11 years. But the company deducted a week’s pay from her last check because she had already used her three weeks’ vacation for the year.
Although her immediate supervisors went to bat for her, the human resources director and corporate bean counters won. Did the company err in not paying her for a week’s work?
--P.K., San Bernardino
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A: California employers are not required by state or federal law to provide employees with paid vacation. However, once an employer decides to provide paid vacation, it must pay employees upon the termination of their employment for any unused vacation.
Some employers, such as yours, permit employees to take vacation before it has been accrued or earned. It’s unclear whether California law allows an employer to deduct the excess if a departing employee has taken more vacation than he or she has earned.
At the very least, an employer must notify the employee in writing--before the employee uses any unearned vacation--that such a deduction will be made.
Your former co-worker should determine whether she received any notice in writing that gave her employer the right to deduct the extra vacation pay from her check. She should check the employee handbook or manual she may have been given, and any employment agreement she signed.
If she believes she was not notified that the employer would make a deduction from her final wages, she may file a claim with the California labor commissioner. She doesn’t need an attorney to do so.
If she is successful, she may be awarded not only money for the week of vacation, but also interest and possibly “waiting time penalties.”
--Diane J. Crumpacker
Employment law attorney
Fried, Bird & Crumpacker
Check-In Requirement Is Legal
Q: A couple of months ago, my supervisor required one of my co-workers, who has a punctuality problem, to e-mail her every day upon arrival, reporting the time she comes to work. A few days ago, the supervisor e-mailed our clerical staff unit saying that her superior requires every staff member to check in via e-mail.
Are they allowed to do this? Can they require certain clerical units to check in and not others, and can this be applied to clerical staff members only? To me, this is a form of intimidation and selective harassment.
--N.N., Fullerton
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A: Yes, your employer may require employees to check in by e-mail. This is no different from requiring employees to sign in by hand or to punch a time clock.
Employers not only have a right to enforce policies requiring prompt attendance, they also have a legal obligation to keep accurate time records for employees who are subject to overtime laws.
Your employer may legally enforce such a requirement among all clerical employees, or only among certain clerical units. This would not constitute harassment or discrimination under the law.
--James J. McDonald Jr.
Attorney, Fisher & Phillips
Labor law instructor, UC Irvine
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If you have a question about an on-the-job situation, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626; dictate it to (714) 966-7873; or e-mail it to shoptalk@latimes.com. Include your initials and hometown. The Shop Talk column is designed to answer questions of general interest. It should not be construed as legal advice.
