Help Wanted: New hire, old pay stubs

It is legal for companies to ask for It is legal for companies to ask for W-2s or pay stubs from job applicants, experts say. Photo Credit: Kevin P. Coughlin, 2010

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Carrie Mason-Draffen Newsday columnist Carrie Mason Draffen

Mason-Draffen, a business reporter, writes a column about workplace issues. ...

DEAR CARRIE: I have a question about some language on an employment application. The form requests your salary history, which I have seen before. But it also states that upon request the prospective employer can ask an applicant for copies of recent pay stubs and W-2s. I was surprised about that possibility and wondered if it is legal. -- TMI?

DEAR TMI: I put your question to an employment attorney, and I'm afraid you're not going to like the answer.

"Yes, it's legal," said Richard Kass of Bond, Schoeneck & King in Manhattan. What's more, he added, "Given how many job applicants fib about their salary history, it's surprising that more employers don't require proof."

DEAR CARRIE: My husband is a salaried employee at a Long Island company that employs about 40 people. He receives 20 paid days off each calendar year. If he uses them all and then gives notice before the end of the year, can the company require him to pay back those days? If he does not use those days, he loses them. Also, is it legal for his company to prohibit employees from using paid days during the last two weeks of the year? --  Concerned Wife

DEAR CONCERNED: Though companies have a lot of flexibility in setting the terms for paid time off, deductions are another matter.

Labor laws don't require employers to offer paid time off, but they do tell companies what they can deduct from employees' pay. Under current regulations, the company most likely couldn't legally deduct for the paid time used if your husband quits soon after taking it.

That's because, except for taxes, employers generally cannot deduct money from employees' pay without the workers' written permission. And even with that permission, local lawyers maintain that the state's strict interpretation of the current regulations wouldn't permit the kind of payback you fear.

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But new regulations that take effect Nov. 6 will give employers more leeway in what they can deduct from employees' pay, said Ellen Storch of Kaufman Dolowich Voluck & Gonzo in Woodbury. That includes what a company deems as an overpayment.

"If the company's written policy specifically states that employees must pay back a certain number of used vacation days if the employee resigns, this policy may be enforceable," Storch said. "The company may be able to deduct the value of the vacation days from wages."

If the deduction route isn't feasible, the company could sue the employee for "the value of the vacation days," Storch said.

As with any new regulation, it will take time, maybe years, to sort out what is permissible and what isn't.

Regarding your second question about whether a company can prohibit the use of paid time off during certain times, that's legal, too.

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"It is lawful for the company to refuse to pay employees for time off during the last two weeks of the year," Storch said.

DEAR CARRIE: I work for a security company. When I asked for a raise, my supervisor told me we never get raises. Is this legal? I have been here for two years with no raise.  --  Stagnant Pay

DEAR STAGNANT PAY: The manager's answer is legal. Labor laws don't require companies to give employees raises.

That said, it must be dispiriting to you and your colleagues to learn that no matter how hard you work, your pay check will not reflect the extra effort. No wonder surveys continually show that when the economy picks up, many employees will head out in search of greener pastures.

For more on current and upcoming regulations on wage deductions, go to http://bit.ly/PvvQiw and http://kdvglaw.com/?p=1851

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