Previously Paid Vacation and Holiday Pay

[shaftman]

What is the name of your state (only U.S. law)? New York

My wife and her employer recently had a meeting where he stated that he paid her vacation and holiday pay in error last year. Now he wants to deduct a total of 65 hours over the next 10 paychecks to make up for the error.

In short, she is going to work 40 hours each week for the next 10 weeks but only get paid for 33.5 hours. Is this legal?

If not and he does it without her consent what is her recourse?

Thanks in advance for all the advice given.

 

[swalsh411]

Is your wife paid a salary or by the hour and is she exempt or non-exempt? And what was there reasoning for coming to the conclusion that she was paid vacation and holiday that she did not deserve?

 

[shaftman]

She is an hourly employee.

The reason the employer gave is that he "shouldn't have paid her for those days".

My wife has worked there for 9 years and at the beginning of last year she asked for vacation and holiday pay. When they spoke a decision wasn't reached but she started getting those days paid. Now he says it was a mistake, she should not have gotten holiday and vacation pay and deducting 65 hours total from the next 10 checks will correct the error.

 

[swalsh411]

Does the employer have a set vacation/sick accrual policy or do they just arbitrarily decide who gets paid time off? If they have a policy, was it followed in your wife's case? Did her pay stub show any accrued time off during last year?

edit: The question I am trying to have answered is whether it was an error and your wife never should have been paid any leave in the first place or if the employer decided to give her paid time off and then changed its mind a year later and now thinks it's OK to take it back. Those are two entirely different scenarios.

 

[shaftman]

It is a small 3 person firm including the employer, my wife, and the IT person.

The IT person gets holiday and vacation pay (always has) but I understand that he is at a "higher level" than my wife.

The firm never had a set policy for my wife's holiday and vacations but once they spoke about it and she started getting paid for it, it seems to me that he made a decision.

Now, a year later he says that he 'regrets' that decision and that's where my problem is. If he didn't want to pay her for those days, he shouldn't have...since he already did I don't think he can ask for it back.

 

[swalsh411]

Since he has acknowledged that he did in fact decide to give her paid time off not vs. a payroll calculation error (and even if this was the case you could argue it's still not an allowed deduction) then no he absolutely cannot go back retroactively and take it back. He can not give her any paid leave from today forward, but what he is trying to do is no different than saying "I regret giving you a raise a year ago so now I'm going to take it back".

This is from the NYS Wage & Hour web page

Q: What deductions can be made from an employee's wages?

A: Section 193 of the Labor Law states:
1. No employer shall make any deduction from the wages of an employee, except deductions which:
a. are made in accordance with the provisions of any law or any rule or regulation issued by any governmental agency; or b. are expressly authorized in writing by the employee and are for the benefit of the employee (such as payments for insurance premiums, pension or health and welfare benefits, contributions to charitable organizations, payments for United States bonds, payments for dues or assessments to a labor organization).
Employers may not deduct from wages the cost of breakage or spoilage of materials; nor may employers make wage deductions in any indirect manner, such as requiring a worker to pay for shortages by means of a separate transaction.

 

[shaftman]

Thanks.

I saw that on the website as well but wasn't 100% sure it was relevant to this situation.

My wife and I wrote him a letter stating that she would not agree to have the money withheld and recommended that he speak with his business advisers before he ever did so.

Let's say he decides to go ahead and deduct the hours anyway, what recourse would my wife have to get the money back?

 

[swalsh411]

You would file a wage complaint with the NY Dept of Labor. There are links on their website on how to do that.

 

[pattytx]

swalsh411, I've been in payroll and payroll management for more than 30 years and those laws such as you cited generally apply to deductions from NET pay, not deductions from gross pay.