I work for an employment agency as a temp and I am paid on a weekly
basis. I started on November 9, 2004, to present.  Every week I submit
my time sheet reflectig the hours worked, and every time my agency
approved it and paid.  Now they tell me that I erroneously included
the lunch breaks in the total number of hours worked, and they want to start
deducting all the back costs from my future paychecks.  Are they
entitled to do that, since they reviewed and approved every timesheet
I submitted? (This is in California)

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Request for Question Clarification by czh-ga on 03 May 2005 17:34 PDT

Hello real1234-ga,

The crucial issue is whether you worked during the lunch break. Under
California labor law, employers must give you an unpaid lunch break if
you've worked five hours. If they don't want to pay you for lunch time
they must not permit you to work during that period. Here's an article
that highlights the issues. Please describe your situation so that we
can determine how the law applies in your case. Thanks.

http://www.foley.com/files/tbl_s31Publications/FileUpload137/265/es00-31.pdf

~ czh ~

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Clarification of Question by real1234-ga on 03 May 2005 20:36 PDT

I did not work during the lunch breaks nor was I asked to.  However,
when I got hired by this agency in November 9, I asked how to fill out
their timesheets.  They told me to just fill in every column and add
it up to a total of weekly hours worked and that they would check for
accuracy.  I agreed and they took it from there and approved all my
timesheets since then and paid me accordingly.  Do they have the right
to withold payments from future paychecks?

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Request for Question Clarification by czh-ga on 03 May 2005 21:09 PDT

I think they can do that. Since you didn't work during lunch they
didn't have to pay you. You may need to ask someone else for advice on
whether they can collect back the mistakenly paid money. Good luck.

~ czh ~

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Request for Question Clarification by cynthia-ga on 04 May 2005 03:45 PDT

The issue now is how long you worked on those days that you reported
ALL hours. Was it LESS than 5 hours, --6 hours, or longer? --and what
kind of work was it? I am asking because a bartender (for example) is
exempt from the 'lunch law' --as are several other types of jobs...

~~Cynthia

Someone has to ask:  
Did you include lunchtime?  You don't have to reply, but it could
obviously have a bearing on an answer.
What kind of contract do you have?  Some places, temporary employee
contracts are interpreted by courts as being only pseudo-temporary if
they mention (just for example) sick leave or vacation - even if
unpaid.

Rather strange that an employment agency would have been careless in
controlling its own employment arrangement, but maybe the info
mentioned on this site changed thing or brought the matter to the
agency's attention:

http://www.elinfonet.com/starticles/5/10

There are many links to articles about a change in April 05 of meal break rules.

I hope a researcher can provide you with an answer.

Minimum Length of Meal Period Required Under State Law For Adult
Employees in Private Sector
http://www.dol.gov/esa/programs/whd/state/meal.htm

Assuming you did report your lunches as time worked... Left as is,
technically you could sue the company for a half hour per day that you
worked over 6 hours, saying that you worked through your lunch.

I am not an attorney, but my guess is that they can attempt to, and
ultimately recover the loss. They DID overpay you on any day you
worked 6 or more hours. Lunch breaks are not an option, they are
required by Federal Law.

My advice would be to call your local BAR Association, get a referral
for a 1/2 hour consultation to confirm what I suspect. It will cost
about $35-$50.00.  Then, cooperate, and make payment arrangements so
this doesn't impact your future paychecks too much.

~~Cynthia

The joke is that your temp agency over invoiced the 'real' employers for your lunch

I suspect that if you point that out to them (nicely) they will come
to an arrangement

If you got on well with your temporary employers, which I suspect you
did as you sound naive and easily intimidated, then a letter to each
of them 'fessing up to your accidental 'fraud' and asking for time to
pay
- would get that shark like temp agency losing a few clients

A really tough cookie would look the agency cretin in the eye
- and say 'fine - I'll pay you back when you pay xxxxx Inc back'
- 'I used to lunch with Fred from accounts'

You have got them by the balls - a gentle twist and .. sorted

Frde, as one old oar to another (no pun intended!), I don't think your
suggestions are as helpful as Cynthia's.  The agency may be fully
within its rights, unpleasant as that may seem.
Best regards, Myoarin

If I were fighting this claim under English law (where I live), I
would plead estoppel. This means that because they always acted as
though you were entitled to the money by paying you, and because of
this you acted to your detriment and spent money that wasn't yours, so
they are estopped from claiming it back. The lead case here is that of
an employee who was mistakenly paid full sick pay for over a year of
absence. He assumed he was allowed it, spent it, and the employer was
unable to claim it back. It wouldn't be a waterproof defence, and
would be open to argument, but it's more than you've got. I must
stress that this is English law, and perhaps another researcher would
address the law in Florida. It may well be that it is fundamentally
different. US and English law isn't usually too far apart, so make
sure this avenue is explored before you cave in and pay up.

http://www.uslegalforms.com/lawdigest/legaldefinitions.php/estoppel.htm

Florida?! Hey, I meant California. Anywhere sunny would be good right now!