employment virginia
Legal to dock pay for (alleged) damage to merchandise?
<p>I got a temp job to make some money.  I quit, as they were docking my pay so much that I made no money.  I can't imagine this is legal.</p>

<p>First, the backstory.  This Virginia toy reseller purchased 20,000 light up necklaces to sell to a theme park.  They received the shipment from a distributor in China.  When they came in, they realized the breakaway clasp was way to tight.  It was extremely hard to snap and unsnap.  Essentially, they weren't breakaway.  They felt this was a danger, as if the necklace was around someone's neck and it got caught while on a ride, it could be a serious hazard.  They found if they used a specific tool, they can shave down the plastic and make it easy to breakaway.  That's where the temps come in.</p>

<p>Three temps came in to do the work.  It was independent contract work and they were paying $0.19 per piece.  If a piece was damaged, they were charging $3 per piece, as that is what they were <strong><em>selling</em></strong> it for to the theme park.</p>

<p>We settled into an assembly line, where I was unpackaging the necklaces.  The next person was shaving them down and the next was getting them ready to be repackaged.  </p>

<p>We did 1684 in 2 days.  At $0.19 per piece, that's $106 per person.  Today, they said, 96 of those were unusable.  That's a 94% success rate.  They said they were charging us the $3 per piece, split amongst the 3 of us.  That $288 split three ways, docking us each $96.  However, I didn't damage <em>any</em> of the pieces, as I was just unpacking them.  </p>

<p>Today, we switched to everyone doing their own work.  I did 75.  Out of those 75, 72 were good, making me $13.68, but losing me $9.  A 96% success rate, netted $4.68. At that point, I realized there was no money to be made and I quit.</p>

<p>In roughly 2.5 days of work I made $14.68.</p>

<p>I asked to talk to the president of the company.  I explained the situation and he said those were the rules.  I told him I didn't damage any of the first 96 and that with only 3 bad today, I still made no money.  He said he "understood where I was coming from."  Really?  Thanks.  I said I would check with a lawyer to see if this was legal.  His lips trembled at this.  It obviously hit a nerve and he got upset and was close to yelling.  He still said that he owed me no more than the $14.  However, due to his reaction, I have a feeling he can't be charging us $3 per piece and he knew it.  </p>

<p>So I have two questions:</p>

<ol>
<li>Can they dock $3 per piece?  I'm sure they didn't buy it at that rate, that's what they are selling them for.  </li>
<li>Can I be held responsible for the 96 damaged pieces that I didn't damage? </li>
</ol>

<p>The Commonwealth of Virginia <a href="http://www.vec.virginia.gov/employee-or-independent-contractor" rel="nofollow">defines a worker</a> as an employee if his or her employer:</p>

<blockquote>
  <ul>
  <li>Furnishes, tools, materials and equipment needed to do the work;</li>
  <li>Sets the hours of work;</li>
  <li>Withholds payroll federal and state income taxes and Social Security taxes</li>
  <li>Receives direction and training from the employer about how to do the work; and</li>
  <li>Is paid by the hour, week, or month instead of being paid at the completion of a job</li>
  </ul>
</blockquote>

<p>Virginia also lists the 20 IRS factors and Virginia exemptions for Employee Classification on their <a href="http://www.vec.virginia.gov/irs-20-factors-and-exemptions" rel="nofollow">web site</a>.</p>

<p>One of the factors in determining if a worker is an employee states, </p>

<blockquote>
  <p>"If the employer furnishes significant tools, materials and other
  equipment by an employer, the worker is generally an employee."</p>
</blockquote>

<p>Other factors include whether or not the employer can discharge a worker or if the worker can quit work at any time without incurring liability.</p>

<p>There are many factors that will be unique to your particular situation that will determine if you were an employee or a contractor.</p>

<p>If you were an employee and not a contractor then, in Virginia, the employer would have had to pay you at least minimum wage for your efforts. Generally speaking, an employers recourse for dealing with a non-negligent employee who performs their work incorrectly is to terminate the employment relationship. It is generally not acceptable to dun the worker for damages that occur during the normal course of business.</p>

<p>If, on the other hand, you were an actual contractor then your contract with your client will be the guide in how you were paid and would also define the damages for which you are responsible for work not performed to contractual specifications.</p>

<p>It is still possible to pay an employee for piece work. This is often done in construction and could make sense for the type of work you were performing. However, the Fair Labor Standards Act requires that the employer maintain records regarding hours worked so that there is an assurance that minimum wage and overtime rules are followed. There is a <a href="http://www.lang-klain.com/publications/constructionadvisor/piece-work.htm" rel="nofollow">good article</a> related to the construction industry that provides a good explanation of the details.</p>

<p>Most state employment commissions, including Virginia's, provide assistance to workers to help them determine if they were properly classified. Virginia's <a href="http://www.vec.virginia.gov/employee-or-independent-contractor" rel="nofollow">website</a> does this as well allowing you to call or send an email.</p>
