Legal Question in Employment Law in California

My employee was given too much vacation due to an input error, can we take it back from him? In our payroll software his total amount to accrue was mistakenly entered as his starting balance.

Asked on 12/19/12, 3:58 pm

3 Answers from Attorneys

Michael Kirschbaum Law Offices of Michael R. Kirschbaum

As an employer, you may not use self-help to deduct anything other than authorized deductions from an employee's paycheck. You can ask him to pay the overpayment back. Just make sure you provide the employee with adequate documentation to show him you are correct in this. If the employee refuses to pay back what he is not entitled to, you can then decide whether you wish to take disciplinary action against him.

Read more
Answered on 12/19/12, 4:06 pm
Charles Perry Law Offices of Charles R. Perry

I agree with Mr. Kirschbaum that you cannot withhold monies from the employee's check to rectify this error, but that you can ask him to pay you back. Note that the only authorized way for you to collect this money is by having the employee actually pay you back. You are not allowed to deduct money from the check, even if the employee agrees in writing.

I am dubious, however, that you are able to lawfully threaten "disciplinary action" against the employee because of this. The threat could be viewed as a form of self-help that is against public policy, and could give rise to a cause of action against you for unlawful retaliatory action.

Your best course of action is to negotiate a payback arrangement with the employee. If that fails, then believe it or not, your lawful remedy may be in small claims court.

Read more
Answered on 12/20/12, 1:17 am
Terry A. Nelson Nelson & Lawless

Of course you can correct YOUR error, but do so fairly and reasonably by showing a negative balance that as he works, will come back to zero and above, over time. You'd better hope he stays long enough to do that.

Read more
Answered on 12/20/12, 10:14 am

Related Questions & Answers

More Labor and Employment Law questions and answers in California