Payroll payment by cash-dispensing machine
STATE OF CALIFORNIA GRAY DAVIS, Governor
DEPARTMENT OF INDUSTRIAL RELATIONS
DIVISION OF LABOR STANDARDS ENFORCEMENT
Santa Rosa Legal Section
50 D Street, Suite 360
Santa Rosa, CA 95404
(707) 576-6788
H. THOMAS CADELL, Of Counsel
December 12, 2002
David Rosenfeld, Esq.
Van Bourg, Weinberg, Roger & Rosenfeld
180 Grand Avenue, Suite 1400
Oakland, CA 94612
Re: Payroll Payment By Cash Dispensing Machine (00188)
Dear Mr. Rosenfeld:
Chief Counsel Anne Stevason has asked me to respond to your
letter outlining a payroll practice which you believe violates
California law.
The pay practice you describe in your letter involves "day
laborers" who are paid on a daily basis either by regular paycheck
or by a special voucher which can be converted into cash only in an
employer-leased cash dispensing machine (CDM) accessible only in
the employer's office for a few minutes after the voucher issues.
There is a fee of $1.00 charged for the use of the CDM and, in
addition, the CDM pays out the funds in bills only so that any
coinage is not paid. You state that these temporary workers
generally do not have funds sufficient to have bank accounts of
their own. Since their pay is not available until after banking
hours, the workers opt for the convenience of the CDM as opposed to
receiving the alternative payroll check which could not be
negotiated until the following business day.
Labor Code § 212 provides, inter alia:
"(a) No person, or agent or officer thereof, shall issue in
payment of wages due, or to become due, or as an advance on
wages to be earned:
"(1) Any order, check, draft, note, memorandum, or other
acknowledgment of indebtedness, unless it is negotiable and
payable in cash, on demand, without discount, at some
established place of business in the state, the name and
address of which must appear on the instrument, and at the
time of its issuance and for a reasonable time thereafter,
which must be at least 30 days, the maker or drawer has
sufficient funds in, or credit, arrangement, or understanding
with the drawee for its payment."
DLSE agrees with your assessment that the pay plan you
describe violates Labor Code § 212(a) inasmuch as the "voucher"
which the employer offers is subject to "discount" when presented
for payment.
The evidence you rely upon to adopt the view that the practice
also violates Labor Code § 221 - which prohibits an employer from
collecting or receiving any part of the wage which the employer has
paid to the employee - is based on a reading of the firm's
financial statement. There is no evidence you submit that directly
proves that the CDM fees revenues shown in the financial statement
are the result of these payroll charges. If, of course, the
employer does receive, directly or indirectly, any part of the
charges made by the machine for these purposes, then the provisions
of the Section 221 would be impacted.
Even without evidence of a violation of Labor Code § 221,
however, there is a clear violation of § 450 of the Labor Code
inasmuch as the employer is coercing the employee to purchase a
thing of value (the convenience of receiving the cash wage owed the
employee for the work performed) from a third party (the person or
persons who receive the charges made for the service). [The word
"coerce" has a recognized meaning of "to domineer or compel by
pressure, threats, or force." The word has a different meaning than
"require".]
The Division recommends that you have one of the affected em-
ployees file a complaint with the local office of the Labor
Commissioner concerning this practice.
Thank you for your continued interest in California labor
laws.
Yours truly,
H. THOMAS CADELL, JR.
Attorney for the Labor Commissioner
c.c. Arthur Lujan, State Labor Commissioner
Tom Grogan, Chief Deputy Labor Commissioner
Anne Stevason, Chief Counsel
Assistant Labor Commissioners
Regional Managers
Lisa Pau