An Administrator's Guide to California Private School Law

Chapter 6 – Wage And Hour Laws

 The school must have sufficient funds at the time the check is made and must maintain sufficient funds for 30 days thereafter. The school may also have a credit arrangement with the drawee that covers the check.  If the check is drawn on a bank, the address of the bank need not be on the face of the check but the check must be honored at any place of business of the bank in this State. 694  Section 212 does not prevent schools from directly depositing payment into a bank account as long as the employee voluntarily authorizes it. 695 Finally, students of nonprofit schools do not need to be paid according to section 212. 696 Failure to maintain sufficient funds for 30 days after the check is made is a violation of Labor Code section 212 and may subject the school to criminal and civil penalties. 697

F. C IVIL P ENALTY F OR P AYMENT W ITH N ON -S UFFICIENT F UNDS I NSTRUMENT Penalties may be imposed against a school that pays with a check that does not have sufficient funds to cover it. 698 An employee who is paid with an insufficient check is entitled to receive one day’s pay for every day the wages remain unpaid, up to 30 days. 699 G. P AYMENT O F W AGES O VER A 10 O R 12 M ONTH P ERIOD Certain school employees such as teachers and teaching assistants only work the 10 months that coincide with the school year. However, instead of paying these employees’ salaries over this 10 month period, it is not uncommon for either the employees or the school to request that the salaries be paid over a 12 month period. This practice creates potential wage and hour issues based upon state and federal wage laws. Under federal tax law, 10 month employees may be paid over a 12 month period. Under section 409A of the Internal Revenue Code 700 , the salary of a 10 month employee may be paid over 12 months either by employee election (i.e., the employee elects in writing to receive his/her 10- month salary over 12 months) or employer requirement (i.e., the school requires all 10-month employees to receive their salary over 12 months.) Both of these processes require that the employee receive notice in writing of the manner in which he or she will be paid, including the dates or schedule of payment, the total amount of the payments, and a procedure for payment of additional amounts earned and owed to the employee upon separation from employment. However, while 10 month employees are permitted to be paid over 12 months under the Internal Revenue Code, such a plan may violate various provisions of the state and federal wage laws. If a school pays a 10 month employee over 12 months, there is a risk that the school may be in violation of wage and hour laws because the employee may not receive timely payment of wages or overtime for all labor performed.

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 186