26 §635. Overcompensation by employer
Title 26: LABOR AND INDUSTRY
Chapter 7: EMPLOYMENT PRACTICES
Subchapter 2: WAGES AND MEDIUM OF PAYMENT
§635. Overcompensation by employer
1. Definitions. As used in this section, unless the context otherwise indicates, the following terms have the following meanings.
A. "Net amount" means the amount of money due an employee as compensation after any deductions or withholdings other than an employer's withholding for the purpose of recovering any overcompensation. [1989, c. 804, (NEW).]
B. "Overcompensation" means any compensation paid to an employee that is greater than that to which the employee is entitled under the compensation system established by the employer, but does not include fringe benefits, awards, bonuses, settlements or insurance proceeds in respect to or in lieu of compensation, expense reimbursements, commissions or draws or advances against compensation. [1989, c. 804, (NEW).]
[ 1989, c. 804, (NEW) .]
2. Recovery of overcompensation. An employer who has overcompensated an employee through employer error may not withhold more than 10% of the net amount of any subsequent pay without the employee's written permission, except that, if the employee voluntarily terminates employment, the employer may deduct the full amount of overcompensation from any wages due.
[ 1989, c. 804, (NEW) .]
3. Violation. If an employer with over 25 employees violates this section, that employer forfeits any claim to the overcompensation.
If an employer with 25 or fewer employees knows of the limitation established by subsection 2 and violates this section, that employer forfeits any claim to the overcompensation. Employers of 25 or fewer employees who do not know of the limitation established by subsection 2 and who violate this section shall return all money withheld in excess of that permitted under subsection 2 within 3 days of written or oral demand by the employee, or forfeit any claim to the overcompensation.
[ 1989, c. 804, (NEW) .]
4. Application. This section is applied as follows.
A. An employer has the burden of proof, except that, if the overcompensation amounts to less than 15% of the correct net amount of the employee's compensation, the employer must prove by clear and convincing evidence that the employee knowingly accepted the overcompensation. [1989, c. 804, (NEW).]
B. If an employee knowingly accepts the overcompensation, this section does not apply. [1989, c. 804, (NEW).]
C. This section, except for the forfeiture provisions in subsection 3, does not limit or affect an employer's general civil remedies against an employee. [1989, c. 804, (NEW).]
[ 1989, c. 804, (NEW) .]
SECTION HISTORY
1989, c. 804, (NEW).