Guy gets paid 100k when he was supposed to get 1k, gets charged with theft.

[newbitech]

Can't we just talk about the scenario that exists instead of making up another one that doesn't really apply?

But since you asked, in Michigan at least, pawn shops get some special protections in that regard. But in most instances, receiving stolen property does not mean you have title. If the police find you with stolen property, and you refuse to return it, they likely would indeed charge you with theft.

sure, the bookkeeper misappropriated the funds into the guys account. The guy did what he wanted to with the misappropriated funds and now he is being accused of being the one who misappropriated the funds without the owners consent. That is a false accusation.

 

[angelatc]

I don't think direct deposit counts as appropriation but spending the money might. Also, I'm not sure what "owner's effective consent" means but if one out of twelve on a jury thinks a non-forged payroll check qualifies (e.g., we get these even though we're on direct deposit), then he walks.

For the purpose of the law, appropriate means

4) "Appropriate" means:

(A) to bring about a transfer or purported transfer of title to or other nonpossessory interest in property, whether to the actor or another; or
(B) to acquire or otherwise exercise control over property other than real property.


(5) "Property" means:
(A) real property;

(B) tangible or intangible personal property including anything severed from land; or
(C) a document, including money, that represents or embodies anything of value.

Direct deposit means he acquired control over the money.

 

[angelatc]

sure, the bookkeeper misappropriated the funds into the guys account. The guy did what he wanted to with the misappropriated funds and now he is being accused of being the one who misappropriated the funds without the owners consent. That is a false accusation.

Not according to the law. See my post above, which cites Texas statute and defines appropriate as acquiring control of the property.

 

[angelatc]

I found the working definition in this thread. But yeah I did miss the one you were talking about. I mixed up in the legal vs moral issue. I still don't think there is enough to establish any kind of legal case much less a conclusion from anything in this article.

As far as the headline, that could change once his defense comes out. We'll see, but probably not. We just know he thought the money was his. .

NO, he thought that the company had made a mistake and he could profit from it. That isn't the same as thinking the money was his.

 

[The Free Hornet]

STOP READING THIS THREAD UNTIL YOU HAVE READ THE POST BY NEWBITECH! CLICK TO READ AND DON'T FORGET TO REP HIS ASS UP!

He only became guilty of the crime when he refused to return it, not when he received it.

He didn't refuse. His claim is not having "ALL" the money and needing time.

According to the document, "Saldivar stated he felt like he did not do anything wrong, he did not have all of the money and needed some time to figure it out."

http://www.beaumontenterprise.com/news/article/Police-Bryan-worker-gets-accidental-huge-4755680.php

In a case I posted, the issue was addressed via future payroll deductions. That is what I would advise because

a) the money is gone
b) the money is gone
c) any money this guy makes is going elsewhere
d) the money is gone

Cesar may not be worth employing but I would suggest this route regardless if it means they could get back certain portions (e.g., the payroll taxes that were deducted automatically). THAT is the money to go after first. But now I hope Cesar sues their ass off for turning the matter from civil to criminal. Or he sues the police department too.

Maybe an accountant can speak to the ease of converting the after-tax amount to a type of payroll loan with no tax implications.

Texas Steel Conversion is a small company but should look into payroll controls. Where I work, checks over a few grand require two signatures, but I can't speak to payroll controls. I don't do payroll, but having done it, I did balance the hours and noted comparisons to prior pay periods. The $100,000k extra would have stood out.

This may be a very expensive lesson and if some asshole is paid $100k to teach it... well, it is likely cheaper than Anderson Consultants.

They should have walked gingerly here but I could be wrong. Maybe Cesar will cough up $40k and this will satisfy all parties the police included.

If a *jury* convicts him of thievery in this instance, please mock me mercilessly for my misinterpretations and stupidity.

 

[angelatc]

In.

That kind of BS happens all the time in the financial realm and no one goes to jail because they refuse to comply with some thugs knocking on the door or some voice over the phone demanding return.

I mean what should he have done? Asked them, "how would you like those bills?" .

He should have called the payroll department the morning after the deposit hit. That's what most people do, actually.

The only time I've seen something similar involved a customer who got money that wasn't theirs. When the brokerage finally tracked it down, they asked for the money back but he refused because he claimed he had already spent it. Company sued, and got a judgment against him for the amount plus legal fees.

Then it got good. He tried to file bankrutcpy , but the company lawyers fought it, claiming that he was using the bankruptcy process specifically to avoid paying that debt, and they won partly because the guy hadn't even fought the original lawsuit. He just let them win by default, apparently figuring that he could just go bankrupt.

So as far as I know, he's still paying the original amount, plus interest, plus legal fees. He would have been better off just doing the right thing.

 

[angelatc]

He didn't refuse. His claim is not having "ALL" the money and needing time.



In a case I posted, the issue was addressed via future payroll deductions. That is what I would advise because

a) the money is gone
b) the money is gone
c) any money this guy makes is going elsewhere
d) the money is gone

Cesar may not be worth employing but I would suggest this route regardless if it means they could get back certain portions (e.g., the payroll taxes that were deducted automatically). THAT is the money to go after first. But now I hope Cesar sues their ass off for turning the matter from civil to criminal. Or he sues the police department too.

Maybe an accountant can speak to the ease of converting the after-tax amount to a type of payroll loan with no tax implications.

Texas Steel Conversion is a small company but should look into payroll controls. Where I work, checks over a few grand require two signatures, but I can't speak to payroll controls. I don't do payroll, but having done it, I did balance the hours and noted comparisons to prior pay periods. The $100,000k extra would have stood out.

This may be a very expensive lesson and if some asshole is paid $100k to teach it... well, it is likely cheaper than Anderson Consultants.

They should have walked gingerly here but I could be wrong. Maybe Cesar will cough up $40k and this will satisfy all parties the police included.

If a *jury* convicts him of thievery in this instance, please mock me mercilessly for my misinterpretations and stupidity.

He did refuse. Having a reason doesn't make it a non-refusal.

Why would anybody loan money to a guy they know is a thief, much less keep him on the payroll?

I am assuming that if Texas Steel is like any other company I've ever worked for, they will indeed be revising their procedures in response to this.

I suspect that Cesar will indeed cough up the money, and the DA will then drop the charges. But I'm having a hard time believing that a jury wouldn't agree that he was not in any way entitled to keep the money, and that he clearly knew it.

 

[RickyJ]

If I stole, I would expect to go to jail. It's infuriating that there is any debate. There is no difference between this guy and any other thief. He withdrew money that wasn't his. He knew it was wrong. He didn't do anything to make things right.

Calling the police is the way civilized people deal with these things. That is much more preferable than taking a baseball bat to Cesar and burying him the desert.

How would they get their money back if they killed him? How are they going to get their money back by trying to claim he stole it and prosecute him for it? They won't ever get it back like that. They can sue him and get a judgment against him, but putting him in jail over a dispute is not in their authority nor should it be. The police screwed up here, this is not a criminal case.

 

[newbitech]

A type of wage deduction that defies easy classification is that of a deduction to offset an overpayment of wages, which was specifically found in the case of Benton v. Wilmer-Hutchins I.S.D., 662 S.W.2d 696 (Tex.App. - Dallas 1983; overruled in part in Orange County v. Ware, 819 S.W.2d 472, 474 (Tex. 1991)), to violate the restriction in the Texas Constitution on garnishment of current wages. The Texas Supreme Court's Orange County decision held that self-help by a creditor-employer, i.e., the offsetting of mutual debts between an employer and employee, did not amount to a garnishment that would be covered by the Texas Constitution, but acknowledged that it might be limited by some other form of law. The only other generally applicable and potentially relevant law in this situation would be the statute regarding attachment of current wages in the Texas Property Code (V.T.C.A., Property Code,Section 42.001(b)(1)). The Texas Supreme Court did not mention that statute, but cited a specific provision of the Local Government Code, Section 154.025, which prohibits a county from issuing a warrant (in the Orange Countycase, a paycheck warrant) to an individual who is indebted to the county. One might assume that the Texas Supreme Court would be aware of the Property Code provision cited above, and thus that the Court felt that the specific Local Government Code provision overrode the more general Property Code section. Unfortunately, the Orange County decision raised more questions than it clearly answered, and three justices dissented from the majority vote. In the absence of a specific provision such as the one that applied in Orange County, it would be most prudent to expect the Property Code provision to apply. The Benton court emphasized that its problem with the wage deduction to offset a previous wage overpayment stemmed from the employer's unilateral action in making the offset, i.e., without a clear prior agreement from the employee that such a deduction could be made. The implication is that if an employer complies with the Texas Payday Law and obtains the employee's written authorization to make such a deduction from wages, neither the Benton case, nor Section 42.001(b)(1) of the Property Code, would stand in the employer's way. Concerning the FLSA, minimum wage would not be a problem, since the wage overpayment would fall into the same category as loans or wage advances (confirmed in a DOL letter ruling dated March 20, 1998 (1998 WL 852662) and in a similar ruling dated October 8, 2004 (see opinion letter FLSA2004-19NA at http://www.dol.gov/whd/opinion/FLSANA/2004/2004_10_08_19FLSA_NA_recoup.htm)). Thus, as long as the employer is able to document the employee's receipt of such wages in advance of the date the wages were due, it should have no FLSA problem in making that sort of wage offset, even if it takes the employee's pay below minimum wage. However, since it represents a deduction from wages, it would need to be authorized in writing by the employee in order to be valid under the Texas Payday Law. In addition, every employer should cover this subject in a written policy (see the sample wage deduction authorization agreement and sample wage overpayment/underpayment policy at the end of the "A - Z" section of this book).

A sample policy regarding wage overpayments (and an employee's duty to return them to the employer) appears in the sample forms and policies section of this book (section II of the A - Z of Personnel Policies).

http://www.twc.state.tx.us/news/efte/deduction_problems_under_tpl.html#wageoverpayments


sounds to me like the police aided and abetted the company in breaking Texas Law. Also sounds like if the employee was fired as a result of this incident, or if the company even attempted to take the funds out of his account they are also in violation of this law.

Even sounds to me like if the company did in fact have the employee sign the overpayment policy, the best the law offers in recovering that money is through deductions from payroll.

Sample policy that the company would have had to have had the employee sign in order to be in compliance with the law.

http://www.twc.state.tx.us/news/efte/wage_overpayment_policy.html

WAGE OVERPAYMENT / UNDERPAYMENT POLICY​

The Company takes all reasonable steps to ensure that employees receive the correct amount of pay in each paycheck and that employees are paid promptly on the scheduled paydays.

In the unlikely event that there is an error in the amount of pay, the employee should promptly bring the discrepancy to the attention of the General Manager or Payroll Manager so that corrections can be made as quickly as possible. If the employee has been underpaid, the Company will pay the employee the difference as soon as possible. If the employee has been paid in excess of what he or she has earned, the employee will need to return the overpayment to the Company as soon as possible. No employee is entitled to retain any pay in excess of the amount he or she has earned according to the agreed-upon rate of pay. If a wage overpayment occurs, the overpayment will be regarded as an advance of future wages payable and will be deducted in whole or in part from the next available paycheck(s) until the overpaid amount has been fully repaid. Each employee will be expected to sign a wage deduction authorization agreement authorizing such a deduction.

I understand this policy and agree to its terms. ________________________________

We ask that employees realize that pay errors are not intentional and that employees be understanding if such an event occurs.

So the employer absolutely had no right to go to this guys house and try to collect, absolutely had no right to harass him over the phone, and absolutely had no right to threaten him with legal action, and absolutely had no right to fire him.

As the guy said, he did nothing wrong. He is not a thief. Perhaps he was uncooperative in coming to terms with repaying his advance, perhaps he was not shown these laws by the company.

Arrested for what? Not repaying the full amount of the 100,000 loan right away? Ha!

edit: oh and Texas law apparently requires a signature to even attempt deductions here is that sample for as well

http://www.twc.state.tx.us/news/efte/wage_deduction_authorization_agreement.html

So doesn't look like they can simply dip into his bank records either.

Only way this could have gotten as far as it did and be any kind of legal is if there is some more charges coming down the pipe that involves another employee, like embezzlement or fraud.

I don't think the guy or the company signed anything that said he would be considered a thief if he didn't agree to his loan repayment terms.

Glad I could sort that out for ya'll. I really hope to see some graceful exiting from this debate as I believe from the legal standpoint there is not a criminal case here as presented. But, I don't expect it. I will just refer to the law instead and welcome the pivot to the moral side of the debate.

 

[The Free Hornet]

For the purpose of the law, appropriate means


Direct deposit means he acquired control over the money.

By your definitions, he was thief prior to spending the money because

a) he had control of it (direct deposit = appropriated per your opinion)
b) it was given without the "owner's effective consent" (per your opinion)

Had he died upon seeing his deposit, he would still be a thief per your interpretation. (!)

But you also argue he is a thief for not returning the money but there is little yet to suggest he has that obligation. No civil judgement and the direct deposit agreement sited only gives permission for one party to withdrawal incorrect amounts. It doesn't force the other party to return incorrect amounts.

So, to attempt being reasonable, the direct deposit could not be the approriation. Withdrawing the money could be and that does better demonstrate that "mens rea" thing internet lawyers like to talk about. There was a case where I guy with cancer left a job, stayed on payroll for a year, said nothing, did nothing. He returned the money upon being asked and things didn't "get ugly". There was no suggestion he was a thief and I'm not aware of attempts to prosecute him. In fact, all the people that have not been prosecuted for this, ought to make defense a piece of cake. Is the DA going to say, 'yeah but this guy is sort of ethnic looking, got a DUI, and drove a fork truck'???

There has to be some clear point in the timeline at which he broke the law in question.

1) When getting the money is out of the question - he did NOTHING to acquire it!

2) When withdraing money is a possibility (note not "the money", but "money" - the shit is fungible)

3) When not supplying a requested amount of money is a possibility ("a requested amount", not the whole amount as we know some of it was intended to be paid - which dollars are innocent and which are guilty, we'll never know).

The odd thing about #3 is that if you owe me $100 due to our civil interactions, I can't call you a thief for not paying right away. I can certainly think of you as one but the process at that point is civil or debt collection - not criminal. We have had customers owe us tens of thousands of dollars. Not a single one has ever been charged with a crime because they filed for bankruptcy. Even if they were scum - they aren't - we can't have them treated like thiefs. I'm sure the cops would point us towards a collection agency or other civil solution. OWING MONEY IS NOT A CRIME!

The odd thing about #2 is that it is his money, at the time, and there has been no notification of the error. Had he been notified and then he spent or withdrew the money, maybe you would have something. He withdrew the money and only later did the employer want it back when they changed their mind about how much they wanted to pay him.

When in the timeline is he a thief? It cannot be when money was appropriated (direct deposited). It cannot be when money was withdrawn or spent unless we admit the naked truth that bank accounts aren't really our money (lol - besides company didn't yet want the money back). It cannot be when money wasn't returned because that will be a civil action or some other law they didn't reference.

 

[The Free Hornet]

sounds to me like the police aided and abetted the company in breaking Texas Law. Also sounds like if the employee was fired as a result of this incident, or if the company even attempted to take the funds out of his account they are also in violation of this law.

Even sounds to me like if the company did in fact have the employee sign the overpayment policy, the best the offers in recovering that money is through deductions from payroll.

...

So the employer absolutely had no right to go to this guys house and try to collect, absolutely had no right to harass him over the phone, and absolutely had no right to threaten him with legal action, and absolutely had no right to fire him.

As the guy said, he did nothing wrong. He is not a thief. Perhaps he was uncooperative in coming to terms with repaying his advance, perhaps he was not shown these laws by the company.

Arrested for what? Not repaying the full amount of the 100,000 loan right away? Ha!

edit: oh and Texas law apparently requires a signature to even attempt deductions here is that sample for as well

http://www.twc.state.tx.us/news/efte/wage_deduction_authorization_agreement.html

So doesn't look like they can simply dip into his bank records either.

Only way this could have gotten as far as it did and be any kind of legal is if there is some more charges coming down the pipe that involves another employee, like embezzlement or fraud.

Thank you a million times for this! (click to rep newbitech) I owe you TWENTY PLUS+REPs. Now.... I don't have the plus+reps on me now, but please trust me that I'm good for them.

I can't thank you enough. This thing stank and now we know why. They ignored their own damn laws. Like this is the first time a payroll dispute arose...

 

[angelatc]

By your definitions, he was thief prior to spending the money because

a) he had control of it (direct deposit = appropriated per your opinion)
b) it was given without the "owner's effective consent" (per your opinion).

My opinion is backed up with the verbage of the Texas State Penal Code, and was offered up only in response to the shrieking that there was no legal definition that could justify the actions of the police. Because he was arrested and charged, it appears that my opinion is shared by at least one Texas DA.

And I specifically clarified , several times in fact, that the statute that defines theft clearly indicates that if he did not know the money was in the account, it would not be considered theft. It became theft when he both became aware of the error and refused to give the money back.

Scroll back up if you doubt me - I"m too lazy to keep looking up the same crap over and over.

 

[angelatc]

A type of wage deduction that defies easy classification is that of a deduction to offset an overpayment of wages, which was specifically found in the case of Benton v. Wilmer-Hutchins I.S.D., 662 S.W.2d 696 (Tex.App. - Dallas 1983; overruled in part in Orange County v. Ware, 819 S.W.2d 472, 474 (Tex. 1991)), to violate the restriction in the Texas Constitution on garnishment of current wages. The Texas Supreme Court's Orange County decision held that self-help by a creditor-employer, i.e., the offsetting of mutual debts between an employer and employee, did not amount to a garnishment that would be covered by the Texas Constitution, but acknowledged that it might be limited by some other form of law. The only other generally applicable and potentially relevant law in this situation would be the statute regarding attachment of current wages in the Texas Property Code (V.T.C.A., Property Code,Section 42.001(b)(1)). The Texas Supreme Court did not mention that statute, but cited a specific provision of the Local Government Code, Section 154.025, which prohibits a county from issuing a warrant (in the Orange Countycase, a paycheck warrant) to an individual who is indebted to the county. One might assume that the Texas Supreme Court would be aware of the Property Code provision cited above, and thus that the Court felt that the specific Local Government Code provision overrode the more general Property Code section. Unfortunately, the Orange County decision raised more questions than it clearly answered, and three justices dissented from the majority vote. In the absence of a specific provision such as the one that applied in Orange County, it would be most prudent to expect the Property Code provision to apply. The Benton court emphasized that its problem with the wage deduction to offset a previous wage overpayment stemmed from the employer's unilateral action in making the offset, i.e., without a clear prior agreement from the employee that such a deduction could be made. The implication is that if an employer complies with the Texas Payday Law and obtains the employee's written authorization to make such a deduction from wages, neither the Benton case, nor Section 42.001(b)(1) of the Property Code, would stand in the employer's way. Concerning the FLSA, minimum wage would not be a problem, since the wage overpayment would fall into the same category as loans or wage advances (confirmed in a DOL letter ruling dated March 20, 1998 (1998 WL 852662) and in a similar ruling dated October 8, 2004 (see opinion letter FLSA2004-19NA at http://www.dol.gov/whd/opinion/FLSANA/2004/2004_10_08_19FLSA_NA_recoup.htm)). Thus, as long as the employer is able to document the employee's receipt of such wages in advance of the date the wages were due, it should have no FLSA problem in making that sort of wage offset, even if it takes the employee's pay below minimum wage. However, since it represents a deduction from wages, it would need to be authorized in writing by the employee in order to be valid under the Texas Payday Law. In addition, every employer should cover this subject in a written policy (see the sample wage deduction authorization agreement and sample wage overpayment/underpayment policy at the end of the "A - Z" section of this book).

A sample policy regarding wage overpayments (and an employee's duty to return them to the employer) appears in the sample forms and policies section of this book (section II of the A - Z of Personnel Policies).

http://www.twc.state.tx.us/news/efte/deduction_problems_under_tpl.html#wageoverpayments


sounds to me like the police aided and abetted the company in breaking Texas Law. Also sounds like if the employee was fired as a result of this incident, or if the company even attempted to take the funds out of his account they are also in violation of this law.

Even sounds to me like if the company did in fact have the employee sign the overpayment policy, the best the law offers in recovering that money is through deductions from payroll.

Sample policy that the company would have had to have had the employee sign in order to be in compliance with the law.

http://www.twc.state.tx.us/news/efte/wage_overpayment_policy.html



So the employer absolutely had no right to go to this guys house and try to collect, absolutely had no right to harass him over the phone, and absolutely had no right to threaten him with legal action, and absolutely had no right to fire him.

As the guy said, he did nothing wrong. He is not a thief. Perhaps he was uncooperative in coming to terms with repaying his advance, perhaps he was not shown these laws by the company.

Arrested for what? Not repaying the full amount of the 100,000 loan right away? Ha!

edit: oh and Texas law apparently requires a signature to even attempt deductions here is that sample for as well

http://www.twc.state.tx.us/news/efte/wage_deduction_authorization_agreement.html

So doesn't look like they can simply dip into his bank records either.

Only way this could have gotten as far as it did and be any kind of legal is if there is some more charges coming down the pipe that involves another employee, like embezzlement or fraud.

I don't think the guy or the company signed anything that said he would be considered a thief if he didn't agree to his loan repayment terms.

Glad I could sort that out for ya'll. I really hope to see some graceful exiting from this debate as I believe from the legal standpoint there is not a criminal case here as presented. But, I don't expect it. I will just refer to the law instead and welcome the pivot to the moral side of the debate.

This is a different situation. Just reading what you posted, it appears to be case against making a repayment arrangement. I'll read more and argue about that later, but an advance requires consent. There was no consent. (A clerical error is not consent.)

Federal law overrides Texas law, and federal law says they have 5 days to take the money back, but they have to inform the employee. After that, they still have a right to try to collect their money. There is no "Finders Keepers" law.

He took money that he was not entitled to. If that doesnt make him a thief, what does?

NOte that the documents on the Texas page are sample documents. I'm not convinced (yet) that because they law says that accidental overpayments can be treated as advances that they MUST be treated as advances.

But can we at least now set aside the notion that he is allowed to keep the money?

 

[krugminator]

But now I hope Cesar sues their ass off for turning the matter from civil to criminal. Or he sues the police department too.

That is literally the dumbest thing I've ever read on this site. Literally. That's number one.

There are some pretty dumb things: the Alex Jones stuff, 9-11 conspiracies, voting machine conspiracies, thinking that Ron Paul actually won, etc.

 

[newbitech]

My opinion is backed up with the verbage of the Texas State Penal Code, and was offered up only in response to the shrieking that there was no legal definition that could justify the actions of the police. Because he was arrested and charged, it appears that my opinion is shared by at least one Texas DA.

And I specifically clarified , several times in fact, that the statute that defines theft clearly indicates that if he did not know the money was in the account, it would not be considered theft. It became theft when he both became aware of the error and refused to give the money back.

Scroll back up if you doubt me - I"m too lazy to keep looking up the same crap over and over.

It never became theft tho, that's the problem here. The so called mistake is actually well documented in labor law at the Federal and State levels. The funds are in fact considered a loan or pay advance. Refusing to repay the entirety of the loan immediately after it is loaned or at any other point is not theft. It just simply is not.

The company is probably in violation of several consumer protection laws however for their loan sharking collection techniques. Unless some other evidence turns up that there was fraud or embezzlement, it is not legal possible to support any claim of theft in this dispute. In fact the police and DA are both complicit in breaking those collection laws.

Fact is, it is impossible to assert that the funds were legally misappropriated without the owners consent in this case since the legal definition of what happened in this case is an advance of wages or loan. That is something that apparently any employer in the state of Texas must abide to and in fact as far as Federal labor laws, all employers in any state without some other explicit definition must abide to. As far as I can tell, the laws are all careful to protect employees from unlawful deductions of wages for any reason.

For the purpose of that definition, wage overpayments are in fact considered advances or loans, and this is to protect the business from wage garnishment laws as well as minimum wage laws.

Unfortunately for the company, their mistake was costly. Sort of like if they accidentally purchased 100,000,000 boxes of red pens when they meant to purchase 100,000,000 boxes of blue pens and had a supplier agreement of no refunds after delivery.

Sucks for the employer cause now they are likely to also face Federal Consumer Protection lawsuit if the guy uses that loan to hire a good lawyer. They probably should have just complied with the law in the first place, sucked up their mistake like every one else with a good moral compass would do and work it out with their employee in accordance to the law.

Basically what they did when they gave this guy an advance like this was ensure that he remain an employee until the debt was repaid. By becoming hostile towards him with their collection effort, calling the cops, and firing him, they just followed up a bad financial mistake with an even worse legal mistake. Maybe they are encouraged now that the "State DA" and cops are with them, but even a sophomore public defender will eat this criminal charge for lunch, and once that acquittal comes, it will likely be more than 100k on the line for the company.

screw up and overpaid an employee and decided to act like a thug in the process of recovering? own the consequences.

 

[newbitech]

This is a different situation. Just reading what you posted, it appears to be case against making a repayment arrangement. I'll read more and argue about that later, but an advance requires consent. There was no consent. (A clerical error is not consent.)

Federal law overrides Texas law, and federal law says they have 5 days to take the money back, but they have to inform the employee. After that, they still have a right to try to collect their money. There is no "Finders Keepers" law.

He took money that he was not entitled to. If that doesnt make him a thief, what does?

NOte that the documents on the Texas page are sample documents. I'm not convinced (yet) that because they law says that accidental overpayments can be treated as advances that they MUST be treated as advances.

But can we at least now set aside the notion that he is allowed to keep the money?

Not really a different situation at all. It's what documents like the Overpayment/Underpayment policy are designed for. There is no other applicable laws. Federal law actually does defer to state law in this case, but when you get around to reading you will see that the Texas Supreme court has referred to FSLA W\H opinion since there is not an explicit Texas law.

Yes, they have a right to collect as you say, not a right to knock on his door, threaten him, harass him and have the cops arrest him. Texas law is explicit in that the way the company may go about recovering the advance is thru deductions. Absent that, there is a plethora of documentation from HR advisers on how to handle collection activity for debt incurred by ex-employees for wage debt.

There is nothing in the law that says there must be consent for an overpayment mistake as you have called it to be considered an advance. In fact, in the Sample Policy it explicitly says that mistakes can happen and those are considered loans or advances, and both parties agree on that, please understand yada yada...

You cannot make the legal assertion that he "took the money he was not entitled to". He was entitled to it by virtue of the company putting it in his bank account in the form of a wage advance. That certainly doesn't make him a thief because its just not legally true.

What would make him a thief is if he conspired with payroll to send that money to his account with the intent on never repaying the loan/advance.

I never said he was allowed to keep the money, but yeah he isn't allowed to keep it. Now can we set aside the notion that this is a criminal matter and that the guy is a thief? (absent some other evidence)?

 

[newbitech]

That is literally the dumbest thing I've ever read on this site. Literally. That's number one.

There are some pretty dumb things: the Alex Jones stuff, 9-11 conspiracies, voting machine conspiracies, thinking that Ron Paul actually won, etc.

He should hold the company and the police and the DA accountable. If he gets money out the deal, more power to him. Maybe the people in his state will feel the pain of having rouge companies and rouge police and rouge state lawyers trampling over folks right to be free from harassment and thugish quasi-fascist collection tactics.

 

[angelatc]

OK - I am going to hack this apart sentence by sentence, noting that these cases all seem to be against government entities, and not private employers.

A type of wage deduction that defies easy classification is that of a deduction to offset an overpayment of wages, which was specifically found in the case of Benton v. Wilmer-Hutchins I.S.D., 662 S.W.2d 696 (Tex.App. - Dallas 1983; overruled in part in Orange County v. Ware, 819 S.W.2d 472, 474 (Tex. 1991)), to violate the restriction in the Texas Constitution on garnishment of current wages.

That sentence says that in Wilmer-Hitchens, the court found a deduction to offset an over payment of wages violated the Texas Constitution.

The Texas Supreme Court's Orange County decision held that self-help by a creditor-employer, i.e., the offsetting of mutual debts between an employer and employee, did not amount to a garnishment that would be covered by the Texas Constitution, but acknowledged that it might be limited by some other form of law.

That sentence says that the Orange County decision said it might be ok constitutionally, but there might be other laws that made it illegal.

The only other generally applicable and potentially relevant law in this situation would be the statute regarding attachment of current wages in the Texas Property Code (V.T.C.A., Property Code, Section 42.001(b)(1)).

That code defines what can't be garnished to recover liens and debts:

Sec. 42.001. PERSONAL PROPERTY EXEMPTION. (a) Personal property, as described in Section 42.002, is exempt from garnishment, attachment, execution, or other seizure if ....:

The Texas Supreme Court did not mention that statute, but cited a specific provision of the Local Government Code, Section 154.025, which prohibits a county from issuing a warrant (in the Orange County case, a paycheck warrant) to an individual who is indebted to the county.

This isn't an attempt to collect a government fine, so I don't think this applies.

One might assume that the Texas Supreme Court would be aware of the Property Code provision cited above, and thus that the Court felt that the specific Local Government Code provision overrode the more general Property Code section. Unfortunately, the Orange County decision raised more questions than it clearly answered, and three justices dissented from the majority vote.

That's two sentences. Caught me. But this would seem to make a case that a repayment agreement is anything except cut and dry.

In the absence of a specific provision such as the one that applied in Orange County, it would be most prudent to expect the Property Code provision to apply.

Again, an argument that a repayment agreement might not be the simple option we were assuming it would be.

The Benton court emphasized that its problem with the wage deduction to offset a previous wage overpayment stemmed from the employer's unilateral action in making the offset, i.e., without a clear prior agreement from the employee that such a deduction could be made.

Again, even if the employee agreed that such deductions could be made, does that mean that the employee is bound to use that as their only recourse? If the employee had gained 9 million dollars instead of just 50k, then it would seem ridiculous to assert that the employee could ever be expected to repay the amount over the course of his lifetime.

The implication is that if an employer complies with the Texas Payday Law and obtains the employee's written authorization to make such a deduction from wages, neither the Benton case, nor Section 42.001(b)(1) of the Property Code, would stand in the employer's way.

This page indicates that they believe that payroll deduction to recover overpayments is illegal if there is consent. It does not seem to obligate the employer to use that method.

Concerning the FLSA, minimum wage would not be a problem, since the wage overpayment would fall into the same category as loans or wage advances (confirmed in a DOL letter ruling dated March 20, 1998 (1998 WL 852662) and in a similar ruling dated October 8, 2004 (see opinion letter FLSA2004-19NA at http://www.dol.gov/whd/opinion/FLSANA/2004/2004_10_08_19FLSA_NA_recoup.htm)). Thus, as long as the employer is able to document the employee's receipt of such wages in advance of the date the wages were due, it should have no FLSA problem in making that sort of wage offset, even if it takes the employee's pay below minimum wage.

Meaning that there could be yet another issue with the repayment plan...the minimum wage law might come into play, even if they don't think it will.

However, since it represents a deduction from wages, it would need to be authorized in writing by the employee in order to be valid under the Texas Payday Law. In addition, every employer should cover this subject in a written policy (see the sample wage deduction authorization agreement and sample wage overpayment/underpayment policy at the end of the "A - Z" section of this book).

Standard fare - they can't hold back any of your wages without an agreement.

Summation - I don't see how this applies.

 

[newbitech]

"It's kind of like if you saw money sitting on the register, you know it's not yours. If you don't make attempts to find the owner, then you're committing theft," said Officer Kelley McKethan, Bryan Police Department.

actually it's kind of like when your employer makes a mistake and overpays you 100,000 grand and it's considered an advanced and/or loan according to Texas and Federal Labor laws/State supreme court decisions/legal etc.. etc..

In order to claim mens rea, you'd first have to exhibit that this guy was ignorant of labor laws, which would be silly cause the next thing you'd have to do is show that employee was in compliance with the Texas Payday Laws which would have the stipulation that overpayment mistakes are in fact loans/advances. So when I get a loan or an an advance, I spend it. Big deal. Guy didn't act like someone who stole money, he acted like someone who wanted to spend his payroll advance.

Make an attempt to find the owner? Not in this case, he was the owner and he knows exactly where the money came from, his labor.

 

[newbitech]

OK - I am going to hack this apart sentence by sentence, noting that these cases all seem to be against government entities, and not private employers.



That sentence says that in Wilmer-Hitchens, the court found a deduction to offset an over payment of wages violated the Texas Constitution.




That sentence says that the Orange County decision said it might be ok constitutionally, but there might be other laws that made it illegal.


That code defines what can't be garnished to recover liens and debts:

Sec. 42.001. PERSONAL PROPERTY EXEMPTION. (a) Personal property, as described in Section 42.002, is exempt from garnishment, attachment, execution, or other seizure if ....:





This isn't an attempt to collect a government fine, so I don't think this applies.



That's two sentences. Caught me. But this would seem to make a case that a repayment agreement is anything except cut and dry.



Again, an argument that a repayment agreement might not be the simple option we were assuming it would be.



Again, even if the employee agreed that such deductions could be made, does that mean that the employee is bound to use that as their only recourse? If the employee had gained 9 million dollars instead of just 50k, then it would seem ridiculous to assert that the employee could ever be expected to repay the amount over the course of his lifetime.



This page indicates that they believe that payroll deduction to recover overpayments is illegal if there is consent. It does not seem to obligate the employer to use that method.




Meaning that there could be yet another issue with the repayment plan...the minimum wage law might come into play, even if they don't think it will.



Standard fare - they can't hold back any of your wages without an agreement.

Summation - I don't see how this applies.

This is the legal basis for the definition of overpayment mistake. overpayment mistake != theft. refusing the unreasonable terms of the repayment != theft. Hell the employer didn't even want to deal with it. Apparently the mindset is that the money was "stolen" from the company when in fact there is no legal basis for that because 1.) The company made the overpayment mistake legally known as a payment advance or loan
and 2.) The company and the police violated the Texas Labor law by attempting an unlawful collection of the advance

Yes standard fare and it applies to all types of wage deductions including wage deduction in compliance with Texas law in regards to mistake overpayments aka loans aka advances.

Can't get any more clear than that really.

I'd like to see some precedence for a criminal conviction in a similar case where the company made an overpayment mistake aka loan aka advance and the employee was tried and convicted for refusing to comply with door knocks and harassing phone calls in regards to the only Texas Labor Law legal avenue for recouping overpayment mistakes aka loan aka advance.