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If my paycheck is late and automatic bills are withdrawn from my bank account (causing an overdraft) is the employer liable?
Anonymous2 views4 answers
My employer recently switched over to a new time management system for paychecks. It is our first paycheck to be disbursed with this new system and I have still not received my paycheck in the mail. We were supposed to have received no later than Friday, but it is now Tuesday and I have still not received it. Since we are unable to contact payroll on weekends and yesterday was a holiday I was stuck. Meanwhile, I have had several bills that are taken out automatically come out of my account so I am currently overdrawn. Unfortunately I am not the only one. Am I still responsible for the charges incurred on my bank account for overdraft and fees from companies who are unable to withdraw their automatic payments? In the past I have had direct deposit so this was never a factor.
I've re-posted your question in the Employment law section because, in California, this matter is addressed by the California Labor Code. Specifically, section 204 provides:
204. (a) All wages, other than those mentioned in Section 201, 201.3, 202, 204.1, or 204.2, earned by any person in any employment are due and payable twice during each calendar month, on days designated in advance by the employer as the regular paydays. Labor performed between the 1st and 15th days, inclusive, of any calendar month shall be paid for between the 16th and the 26th day of the month during which the labor was performed, and labor performed between the 16th and the last day, inclusive, of any calendar month, shall be paid for between the 1st and 10th day of the following month. However, salaries of executive, administrative, and professional employees of employers covered by the Fair Labor Standards Act, as set forth pursuant to Section 13(a)(1) of the Fair Labor Standards Act, as amended through March 1, 1969, in Part 541 of Title 29 of the Code of Federal Regulations, as that part now reads or may be amended to read at any time hereafter, may be paid once a month on or before the 26th day of the month during which the labor was performed if the entire month's salaries, including the unearned portion between the date of payment and the last day of the month, are paid at that time.
(b) (1) Notwithstanding any other provision of this section, all wages earned for labor in excess of the normal work period shall be paid no later than the payday for the next regular payroll period.
(2) An employer is in compliance with the requirements of subdivision (a) of Section 226 relating to total hours worked by the employee, if hours worked in excess of the normal work period during the current pay period are itemized as corrections on the paystub for the next regular pay period. Any corrections set out in a subsequently issued paystub shall state the inclusive dates of the pay period for which the employer is correcting its initial report of hours worked.
(c) However, when employees are covered by a collective bargaining agreement that provides different pay arrangements, those arrangements shall apply to the covered employees.
(d) The requirements of this section shall be deemed satisfied by the payment of wages for weekly, biweekly, or semimonthly payroll if the wages are paid not more than seven calendar days following the close of the payroll period.
It's unclear from your post what working period the paycheck due on Friday (the 13th) was meant to cover. It's also unclear on what basis you were paid (e.g., semimonthly, biweekly, etc).
If the employer in fact violated these provisions of this section, Labor Code section 210 provides the penalty:
210. (a) In addition to, and entirely independent and apart from, any other penalty provided in this article, every person who fails to pay the wages of each employee as provided in Sections 201.3, 204, 204b, 204.1, 204.2, 205, 205.5, and 1197.5, shall be subject to a civil penalty as follows:
(1) For any initial violation, one hundred dollars ($100) for each failure to pay each employee.
(2) For each subsequent violation, or any willful or intentional violation, two hundred dollars ($200) for each failure to pay each employee, plus 25 percent of the amount unlawfully withheld.
In addition, you may be able to pursue a claim for Unfair Business Practices in violation of California Business and Professions Code section 17200.
On balance, then, it would be wise to consult with a qualified employment law attorney to discuss your rights and options.
I wish you luck.
Unfortunately, you are responsible for the activity on your account. That does not mean that your company will not agree to reimburse you, but the bank has an agreement with you, not your employer.
Now with regard to handling the situation with your company, I suggest that you gather the proof of the fees and charges you believe you incurred due to your company not providing your paycheck on time. Once you gather this information you should contact the human resources department with regard to your complaint. Additionally, you should place the complaint in writting and be sure to include exactly what you are requesting they do for you.
I make no promises that you will be successful but if you are professional you may get your company to assist you due to their mistake.
This is outside my area of expertise, but no, your employer isn't liable. I don't think you have any claims for unpaid wages yet. It sounds like your employer is simply setting up a new system and you check is on the way. As for the automatic withdrawals from you bank account, it's entirely your responsibly to maintain the balances necessary to cover them or otherwise cancel the automatic withdrawals.
It is unclear, but it seems that your employer did not give you notice that it was changing its usual pay dates, but that its new payroll system failed to issue checks on the usual date. If your employer has established, either through written policies or through an established practice, usual days for payment of paychecks to employees, then the failure to provide that paycheck on the usual date is considered late payment of wages and is subject to penalties. The waiting time penalty is one day of wages for each day the paycheck was late, up to a maximum of 30 days.
You may pursue a claim for the late wages without the help of an attorney through the Department Labor Standards Enforcement, which can be fairly effective for employees with small wage claims. California public policy is that the employer cannot retaliate against you for making a good faith claim for unpaid wages, and if the employer does retaliate, then the employer could be liable for additional damages.
In reality, employers sometimes do retaliate, including terminating employees who complain, sometimes many months after the issue has died down to try to claim that the termination was not tied to the earlier complaint. As a practical matter, you need to assess the positive and negative aspects of complaining to either your employer or DLSE about the late payment, including weighing how comfortable you are in the job, how much collecting the penalty amount would mean to you in terms of your financial well-being, and whether you see yourself being employed in your job long-term. In my experience, honest employers usually fix these types of mistakes automatically because they do not want to incur the financial liability posed by 20 or so upset employees with potential wage and hour claims. Bad employers will shine aggrieved employees on.