AboutShirley McAllister, CPP, PHR Expertise I can answer questions about payroll laws and payroll tax laws and Human Resource laws and agencies. I can answer federal payroll and human resource law questions and most states; I do not have a knowledge of the local taxes for cities and counties within the state.
If and when I can I will try and send you the website where you can reference the answer and where you can obtain more information as well as a contact number if needed for that particular agency.
Some agencies I have worked with are IRS, Department of Labor (federal and state), Revenue Canada (and provincial governments), Inland Revenue, OSHA (0ccupational Safety and Health Administration); Social Security Administration and National Child Support as well as other agencies in Payroll and Human Resources.
Some Laws I am particularly familiar with are FLSA (Fair Labor Standards Act), ADA (Americans With Disabilities Act), FMLA (Family Medical Leave Act) COBRA (Consolidated Omnibus Reconciliation Act ) , QDRO's, QMCSO's, and other support orders and garnishments, USERRA (Uniformed Services Employment and Remployment Rights Act,PPA Act (Pension Protection Act of 2006, As well as most other employment type acts. I am also well versed in the Title V Civil Rights Act and the HIPAA (Health Insurance Portability and Accountability Act).
Experience 25 years in Payroll and Human Resources
Organizations SHRM (Society of Human Resources)
APA (American Payroll Association)
DOLEA (Department of Labor Employers Association)
Education/Credentials PHR Certification in Human Resources
CPP Certification in Payroll in U.S.
Payroll Administrator and Payroll Supervisor certification in Canada
Question We have overpaid several union employees for short turn around, and underpaid them for night shift differential. This error was just discovered, and it dates back several pay periods. I have figured out both over and under-payment amounts and in some cases, the employee owes the company money. How do we do this legally, or CAN we even do this at all? We are in Oregon.
Answer You are entitled to recoup all overpayments of wages, as long as you can clearly show that your employee received more than she was due under your wage agreement. However, to avoid running afoul of wage laws, be careful about how you get the money back.
Your safest bet is not to deduct money from the employee´s future paychecks, but instead to notify them of the overpayment and work out a mutually agreeable repayment plan under which they make direct payments to your company.
The Oregon statute that allows certain lawful deductions from wages, ORS 652.610, does not specifically address the issue of wage overpayments. In the past, the Bureau of Labor and Industries viewed overpayments as a form of payment in advance and didn´t consider adjustments on future paychecks to be "deductions" that would violate this law.
However, in 1997, a federal court decided in the case of Duncan v. Office Depot that withholding money from an employee´s check to recoup an overpayment was an illegal deduction under the Oregon statute.
In that case, the employer overpaid the employee, Kevin Duncan, by nearly $5,000 over a period of months. After discovering the mistake, the employer wrote a letter advising Duncan of its intention to recoup the money through weekly payroll deductions and asked him to sign the letter. Duncan did sign the letter, but indicated that it was "under protest." After one deduction was made, Duncan resigned.
The federal court determined that the employer was entitled to return of the overpayment, but that its method of recouping the money constituted an illegal deduction.
Even though the court ruled such deductions are illegal, the policy of the Bureau´s Wage and Hour Division is not to pursue employee wage claims when an employer has a valid counterclaim against the employee. So assuming that there is no dispute that your employees were overpaid, the Bureau would not investigate the employee´s claim.
Of course, this wouldn´t prevent them from taking private action and seeking penalties in a lawsuit in court. That´s why a payment plan that doesn´t involve the paycheck is your wisest option.
I hope this helps. If it is not a lot of money maybe the employee will voluntarily write a check and pay it back or maybe the company will just want to write it off because it would take more time to collect and cause bad feelings amonst the employees.
