Employer Is Required to Withhold Taxes Accurately

Q: In October, when I started a low-paying salaried job with a private nonprofit foundation, I filled out the federal income tax withholding form, noting that I am single.

When I received a paycheck in mid-December, there was almost nothing left after withholding for federal income tax. When I asked the foundation’s accountant about it, she said she had not been withholding enough since I started work because she assumed I was married. When she realized her mistake, she had to take out large amounts from both of my December paychecks. The withholding amounted to more than 60% of the gross amount.

She said she made the large withholding on the advice of legal counsel. I pointed out that I had until April 15 to save up for the tax due, but the accountant said she had no choice. Was it legal for my employer to do this? What recourse do I have against the foundation or the accountant?

--G.P., San Clemente

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A: Employers are required by law to withhold taxes accurately from employees’ paychecks and pay such sums to the government.

Failure to comply with these duties could subject the employer to many penalties. The employer could be independently liable for payment of the taxes that should have been withheld, for interest on the payment, and for an additional amount equal to the total value of the amount if the failure to pay is willful. In addition, responsible corporate officers can be held personally liable if they willfully fail to pay the tax.

Internal Revenue Code rules provide that if too little is withheld from an employee’s paycheck, the employer may show the correct amount on the next return and deduct the under-collection from the employee’s next wage payment.

Because your employer was in error, it would have been appropriate for you to request some kind of financial arrangement such as a temporary loan or less drastic withholding plan to help tide you over. After all, it was their mistake, not yours.

You also could claim that your employer failed to follow its contractual responsibilities to you and had a duty to compensate you because of the mistake. But if the harm and inconvenience to you was minimal or has already passed, more complaints about the situation might adversely affect your relationship. You should take that into consideration if you are looking forward to a career there.

--Don D. Sessions

Employee rights attorney

Mission Viejo

Negotiate Notice With Employer

Q: I have been employed at my job for more than 11 years, but I am in the process of getting a better job. My employer knows this and is encouraging me to do so.

Once I have lined up another job and decide to leave, what kind of notice should I give my current employer? I have been told that it is good to give two weeks’ notice. The company manual simply says we are free to resign at any time, with cause.

--D.L., Los Angeles

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A: There is no hard-and-fast rule, but two weeks is the norm for giving notice. However, a more important consideration is how much time it will take for you to successfully wrap up your work in order to smooth the transition for your employer and your successor.

Discuss this issue with your employer. It’s possible that less than two weeks is suitable or that your employer may request longer notice.

You might want to accommodate your employer or negotiate the length of notice. It’s always better to leave on good terms with an employer.

--Ron Riggio

Director, Kravis Leadership Institute

Claremont McKenna College

Law Requires Break in Every 4 Hours

Q: In my nine years with a large retail firm, I have never been allowed 15-minute breaks in the morning and afternoon when working an eight-hour shift. Aren’t employees allowed such breaks by law? Our manager is always saying she needs people on the floor and cannot give us any time other than for lunch.

There are days when we can’t stop for lunch until 3 p.m. We’re afraid we’ll lose our jobs if we complain.

How should we proceed? Do we stand a chance?

--H.D., Studio City

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A: You stand an excellent chance.

California law requires retail employers to give their hourly employees at least a 10-minute paid break during every four hours worked (or major fraction of four hours). Breaks are to be given as near to the middle of the four-hour segment as possible.

You should file a complaint about the denial of breaks with the California labor commissioner, which has an office in Van Nuys.

Although your concern about being fired is understandable, it would be unlawful for your employer to retaliate against you for filing a claim with the labor commissioner. If your employer were to do so, you would be entitled to reinstatement, lost wages, other monetary damages and attorney’s fees.

--Joseph L. Paller Jr.

Union, employee attorney

Gilbert & Sackman

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If you have a question about an on-the-job situation, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626; dictate it to (714) 966-7873; or e-mail it to [email protected]. Include your initials and hometown. The Shop Talk column is designed to answer questions of general interest. It should not be construed as legal advice.