can an employer take money out of my paycheck because a credit card declined at the bank?

Absolutely not, unless you intentionally accepted a card that you knew would ultimately bounce. The courts and legislature understood that mistakes are inevitable, and the employer is in a better position to absorb the loss than is the employee. An employer cannot make the employee into an insurer of the employer’s business.

In Kerr’s Catering Service v. Department of Industrial Relations, 57 Cal. 2d 319 (1962), the California Supreme Court stated that “some cash shortages, breakage and loss of equipment are inevitable in almost any business operation. It does not seem unjust to require the employer to bear such losses as expenses of management when it is presently the unchallenged practice to require him to bear, as a business expense, the cost of tools and equipment, protective garments and uniforms furnished to the employee . . . . ”

“Furthermore, the employer may, and usually does, either pass these costs on to the consumer in the form of higher prices or lower his employees’ wages proportionately, thus distributing the losses among a wide group. In addition, the employer is free to discharge any employee whose carelessness causes the losses . . . .”

In addition, California Labor Code sections 2800 and 2802 require an employer to indemnify an employee for expenses and losses incurred on the job:

2800. An employer shall in all cases indemnify his employee for losses caused by the employer’s want of ordinary care.

2802. (a) An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying the directions, believed them to be unlawful.

Additionally, an employer is prohibited from making any deductions from an employee's paycheck unless the employee authorizes those deductions in writing, or the law requires the deductions.

However, an employer has the right to discipline an employee for mistakes on the job, all the way up to firing the employee. But the employer may NOT discipline an employee for complaining that the employer violated the wage and hour laws.

Even if your employer violated the law, there may be many reasons not to do anything about it just now. Taking action could result in the loss of your job due to employer retaliation. While it is illegal to retaliate against an employee who makes a good faith complaint about unlawful pay practices, all the law does is provide a remedy after the fact; the law cannot prevent your employer from taking unlawful retaliatory action in the first place. You may find yourself out of a job in this terrible economy and unable to find a replacement. No law suit, no matter how successful, can ever give you back the lost time and lost peace of mind that are taken from you during any litigation.

There is an alternative, though it involves waiting. California law requires an employer to pay an employee all accrued wages, vacation, PTO, and ascertainable commissions AT THE TIME the employer ends the employment relationship. If the employee quits without advance notice, the employer has 72 hours to make this payment.

If the employer does not pay as required, there is a penalty against the employer and in favor of the employee: the employee’s pay continues as if the employee were still working, every day until the employer pays in full, up to a maximum of 30 days. The employee is entitled to interest at 10 per cent per annum on the unpaid amount. Also, if the employee must go to court to get his or her pay, then the employee is awarded reasonable attorney’s fees and costs of suit.

So when your employment with this employer ends you can pursue a wage claim or lawsuit if you are not paid everything as required, provided you are still within the time limit (see below).

You will need documentation to support your case. Keep your documentation at home, not at work, to make sure it remains private and doesn't disappear. For documentation:

Keep track of all the information related to this situation. Write down the details using names, dates, location, witnesses, times of day – as much as you can. Save copies of any documents.

When you are ready: The Division of Labor Standards Enforcement (DLSE) is a sub-agency within the California Department of Industrial Relations. http://www.dir.ca.gov/dlse/. Some people refer to the DLSE as the Labor Commissioner. The DLSE enforces California's wage and hour laws, including those pertaining to overtime, rest and meal breaks, and more. The link for information on filing a wage claim is here: http://www.dir.ca.gov/dlse/howtofilewageclaim.htm. You have THREE YEARS from the last day of work to file a Labor Commissioner claim for unpaid wages. However, there may be only one year to collect the 30 days' pay penalty, so file within one year of the date your employment ends.

If you pursue a lawsuit in state court, you have the potential to recover unpaid wages going back FOUR YEARS (instead of three) from the date you file suit, per Business & Professions Code sections 17200 et seq. But again, remember the one year deadline mentioned above.

Your best bet is always to consult one or more experienced employment law attorneys with whom you can discuss the details of your situation and go over your time limits. Please do not rely on general information from a public site such as Avvo.

To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org. Click on "Find a CELA Member" and you can search by location and practice area. Many CELA attorneys represent clients throughout the state.

I hope there is a good resolution to this situation.

Marilynn Mika Spencer
San Diego

posted by Marilynn Mika Spencer  |  Sep 5, 2015 7:40 PM [EST]