Q: Have a question on labor law violation L.C. 226.3
I own a Math & Reading Franchise and I employee many part-time graders, who are primarily high school students. Last week I had a surprise inspection from Labor Commissioner's office and I have been cited for a violation of L.C. 226.3. The reason given was that I have been paying my employees once a month instead of Semi-monthly which is required at a minimum. I was paying twice a month until a year ago for over 12 years, when I switched to once a month pay. I did this mainly because the high schoolers who were working for me were not regular about signing their time sheets, so every two weeks I had to be after them. By moving the pay to once a month, I thought at least I just need to follow up once a month. Anyway, the penalty for this violation is $37000. I understand my violation, but I did it inadvertently and this is my first violation. I have the record of previous pay checks when I was doing twice a month. Do I have any legal recourse?
A:
In this instance you SHOULD hire a lawyer. Other higher ups may decide that your action was inadvertent, although really it was intentional in the sense that no one made you do it, though inadvertent in terms of legality. The code section explains it:
Any employer who violates subdivision (a) of Section 226 shall be subject to a civil penalty in the amount of two hundred fifty dollars ($250) per employee per violation in an initial citation and one thousand dollars ($1,000) per employee for each violation in a subsequent citation, for which the employer fails to provide the employee a wage deduction statement or fails to keep the records required in subdivision (a) of Section 226. The civil penalties provided for in this section are in addition to any other penalty provided by law. In enforcing this section, the Labor Commissioner shall take into consideration whether the violation was inadvertent, and in his or her discretion, may decide not to penalize an employer for a first violation when that violation was due to a clerical error or inadvertent mistake. - See more at: http://codes.findlaw.com/ca/labor-code/lab-sect-226-3.html#sthash.xneXt4ks.dpuf
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A:
Employee Classification Rule Labor Code Section
Executive, administrative and professional employees
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 salary, including the unearned portion between the date of payment and the last day of the month, is paid at that time. Such employees may be paid more frequently, however.
Calif. Labor Code section 204
A: You can focus on finding defenses or mitigation. More details are necessary to provide a professional analysis of your issue. The best first step is an Initial Consultation with an Attorney. You can read more about me, my credentials, awards, honors, testimonials, and media appearances/ publications on my law practice website, www.AEesq.com. I practice law in CA, NY, MA, and DC in the following areas of law: Business & Contracts, Criminal Defense, Divorce & Child Custody, and Education Law. This answer does not constitute legal advice; make any predictions, guarantees, or warranties; or create any Attorney-Client relationship.
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