Sunday, April 13, 2008

Painter says he was shorted pay

BY COLBY FRAZIER
DAILY SOUND STAFF WRITER
The California Department of Industrial Relations ordered EverGreene Painting Studios Inc., a New York company hired to paint the inside of the Granada Theatre, to pay one of its former Santa Barbara employees $5,348 in “waiting time penalties.”
The former employee, Aaron Levy, filed a complaint against EverGreene after he said his final paycheck was roughly $200 short. Levy said he made multiple attempts to retrieve his pay and picketed in front of the Granada during its March 5 opening night gala.

Levy said he worked as a laborer for the company for about three and a half weeks before being let go on Dec. 13 and was given a partial paycheck the following day.
His battle to retrieve the remainder of his wages ended on Jan. 7 when he received a check from EverGreene for the remainder. But by that time he’d waited 25 days, and according to California Labor Code Section 203, the clock was ticking for EverGreene during that time period to the tune of $213 per day, which grew quickly to several thousand dollars.
Levy said he’s disappointed in the way EverGreene treated him and suspects the company thought he would simply give up.
“The expectation is I should just go away,” he said. “I should just not spend the time and I’m just not the guy to do that.”
Levy estimates he’s spend more than a hundred hours picketing and compiling documents for court and said his life has been deeply interrupted by the dispute, which has now dragged out for four months.
But while Levy insists he got the raw deal, EverGreene President and founder Jeff Greene said the pay discrepancy was an innocent clerical error that amounted to 2.5 hours of pay, or about $92.
“That $92 mistake cost me $5,348 — a lot of money,” he said. “And on top of [that] we have him writing letters and trying to convince everybody that we’re terrible people.
“It was a completely honest mistake which we made him whole on.”
Greene said he hired about 20 locals to work on the project and didn’t have trouble with any of them. He said Levy was let go earlier than the rest because he would not listen to the foreman.
Levy said he left on amicable terms and told the Daily Sound he was let go because he wasn’t working out.
The 2.5 hours in question consist of small chunks of time, Greene said, such as 15-minute breaks that weren’t taken. During the final homestretch to complete the project, he said things like that were easy to lose track of.
Greene said he has received threatening phone calls and e-mails from Levy, and described his former employee, who he has never met in person, as a “raving lunatic.”
Levy confirmed that he has contacted Greene in an attempt to get his money, and also said he’s spoke with Granada officials and others involved with the project to see if they could put pressure on EverGreene to pay up.
Greene, who said he’s been doing business in California for the past six years, vehemently denied any wrong doing and said he simply didn’t know the law as well as Levy.
“It was our mistake, in naivety, to not make sure everything was kosher before we let him go and we paid for it,” Greene said. “I think he knew what he was doing. He knew there was a mistake and he could profit by it.”
Levy said he knew the law because a former employer of his once shorted him $30 on a final paycheck. He said he contacted the employer, who responded a week later by sending him a check for $1,000. When Levy told the employer they overpaid him, he said he was told the $1,000 accounted for “waiting time penalties.”
According to the order, which was handed down on March 27 by state Division of Labor Standards and Enforcement Hearing Officer Paul S. Rodriguez, “waiting time penalties” were due in this case.
“Simply, the plaintiff’s final wages were due and payable to him in full at the time and place of discharge, and the defendant failed to honor its statutory obligation to pay these final earned wages timely,” the ruling says.
The law, as cited in the ruling states, Labor Code Section 203 “provides that, if an employer willfully fails to pay any wages to an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid…”
The due date is stipulated in Labor Code Section 201 and says any wages due at the time of termination should be immediately paid to the employee.
Upon hearing the ruling, Greene said he complied and sent a certified check to the labor commission, which gave the check to Levy.
But Levy ran into further difficulties when he attempted to cash the check. He said Bank of America and Business First National Bank both told him the check was no good because there were holes punched through account numbers printed on the bottom of the check.
Levy said he returned the check to the labor commission.
Attempts to reach Senior Deputy Labor Commissioner Daniel M. Cornet for comment were unsuccessful.
Greene said there’s no reason why the check shouldn’t have been honored and blamed Levy.
“The state directed us to send him a certified check and we complied immediately,” he said. “That’s what they told us to do.”

1 comment:

David Esparza Jr said...

A clerical error is a common excuse used by employers in pay disputes.

That the company recognizes it was a simple error means it ought to have been corrected much sooner.

But that the company also waited many days means they wasted the opportunity to correct the problem.

Having dealt with the Department of Industrial Relations, they do not simply hear one side of a story and issue a ruling. The company likely went through the investigation process and could have corrected the problem during this time. Instead, they waited until they were forced to act and now complain about it being only a small issue that the employee made big.

Employers ought to make sure that managers and supervisors understand and obey wage and labor laws. Too often, these folks, who are not true stake holders, put the company and owners at risk for trying to punish employees and thinking they are protecting the company from losses-- even losses as little as $92.

A few rest periods, a meal break, minutes before or over the printed time card, tips here and there... these are dismissed as unnecessary by front line supervisors and some owners who become overzealous with keeping day to day operations moving. And it can cost a lot of money when it happens.

Unfortunately, though these things happen every day, most employees are afraid of being fired and thus refuse to speak up.