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Employer Can't Choose to Pay Workers' Salaries Late

July 18, 1999

Q: My employer has encountered difficult times and wants to "defer" a percentage of our salaries. If this organization ends up declaring bankruptcy, what are our chances of recovering this deferred compensation? Would the lower salary influence the level of unemployment compensation?--G.S., Irvine

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A: An employer cannot lawfully "defer" any part of an employee's salary. Employees must receive all earned wages or salaries in a timely manner.

In California, executive, administrative and professional employees generally must be paid at least once a month, and all other employees generally must be paid twice a month. Employees covered by a collective bargaining agreement providing different pay arrangements must be paid in accordance with the agreement.

If your employer has failed to pay you in a timely manner, you have a wage payment claim and should consult with the Division of Labor Standards Enforcement of the California Department of Industrial Relations.

An employer can lawfully reduce wages or salaries, but in that event, it owes only the reduced amount. The employee would not be entitled to recover more in a bankruptcy or other proceeding. If your wage or salary has been reduced, the employer owes you only the reduced amount.

Contact the California Employment Development Department for information about unemployment compensation.

--Deborah C. Saxe

Management attorney

Heller Ehrman White & McAuliffe

Freelancers and Unemployment Pay

Q: I worked two years as a freelancer for a TV station, then was let go because of budget cuts. Am I eligible for unemployment checks?--H.G., Los Angeles

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A: Former employees can recover unemployment compensation if they are terminated for some reason other than "intentional misconduct," according to Nanette Cohen, an unemployment insurance advocate in Tustin.

As an independent contractor, however, you would not be entitled to unemployment compensation that is assessed to the TV station.

If you independently elected to contribute to the unemployment fund, you would be covered. Had you been laid off by a previous employer within the last 18 months, you might be able to obtain unemployment compensation assessed to that employer.

You should evaluate, however, whether you actually were an independent contractor. There are a variety of factors that the state Employment Development Department considers in determining such status. The key factor is "control." If the station controlled your work hours, work station, tools of your employment, and other conditions of your work, for example, you might be considered an employee. If so, your employer might be responsible for unemployment contributions even though it didn't initially pay them. Contact the Employment Development Department for more information.

--Don D. Sessions

Employee rights attorney

Mission Viejo

No Relocation, No Promotion

Q: I have been employed with a nationwide company for six years. I have been offered promotions, but only if I move to another state. I do not wish to do so because I have a family and house here. Is it legal to deny me a promotion because I am not willing to relocate?--C.C., Los Angeles

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A: Absolutely. An employer may take into account an employee's willingness to relocate in determining whom to promote.

Your company may not have a need at your location for more employees at the next level above you, for example, but it may have such a need in other parts of the country. Also, many employers prefer to give their employees exposure to different markets and geographical areas as part of the career development process.

Your unwillingness to relocate may well prevent you from advancing in your organization.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

Time Sheets Altered Unlawfully

Q: My supervisor alters my time sheets after I have signed and submitted them. In every case, it has resulted in a reduction in my paycheck. Is it legal to alter an employee's hours on a signed time sheet without consulting with or notifying her of the changes? This has happened so often that I am beginning to consider it harassment.--J.B., Los Angeles

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A: Your employer is violating federal and state law by altering your time sheets to delete hours that you have worked. Your employer is subject to severe penalties for failing to keep accurate records or for denying you proper wages and overtime premiums. In addition, you should be entitled to recover back pay, damages and attorney's fees from your employer.

To take action, contact the nearest office of the California Labor Commissioner or consult an employment attorney.

--Joseph L. Paller Jr.

Union, employee attorney

Gilbert & Sackman

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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.

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