Does my employer have the right to keep part of my salary? While deduction and garnishment are not to be confused, your employer can keep part of your earnings. But the practice is extremely supervised.
All work deserves pay. Conversely, does every deviation deserve restraint? In some cases, your employer may actually withhold part of your remuneration. Be careful though do not confuse withholding and garnishment of wages. Thus, the seizure of remuneration allows a creditor to recover, through the intermediary of the employer, part of the sums owed by the employee. This is a very supervised practice. In accordance with articles R.3252-2 and following of the Labor Code, the employee may be deducted between 1/20th and the totality of his salary depending on his portion of annual remuneration. according to the Minister of Labor. For its part, the wage deduction is the direct initiative of the employer.
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In what situations?
First of all, the employer is entitled to withhold part of the employee’s remuneration in the event of overpayment. This can happen if your employer has made a mistake and there is an overpayment in favor of the worker, confirms David Guillouet, associate lawyer at MGG Voltaire. But in the context of an overpayment, rules apply, which come to preserve the salary. The employer who makes a cash advance to the employee can only be reimbursed by means of successive deductions not exceeding one-tenth of the amount of wages due, provided for in article L.3251-3 of the Labor Code.
In the texts, the employer can also operate a compensation between the amount of the wages and the sums due to the employer in the event of damage to the professional equipment for which the employee is responsible and the use. But for David Guillouet, the deduction for degradation is applied very little because the texts are vague: The employee cannot be sanctioned by a deduction from salary for minor degradation of business tools. On the other hand, the employer can launch a disciplinary sanction. In the event of deliberate nuisance on the part of the employee, a dismissal may be notified, which will lead to the non-payment of wages.
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Finally, the employee can be seen financially penalized in the event of repeated absences. The Droit travail France site gives the following example: an employee absent for 5 hours for a number of hours of monthly work equal to 140 hours and a salary of 1800 euros will have 64.28 euros retained (5×1800/140 = 64.28). This scenario is not a sanction. The salary is the counterpart of the work, explains the lawyer. If the employee does not perform his work, the employer can refuse to pay him a salary. This is the synallagmatic side of the employment contract. The Court of Cassation, in a judgment of November 30, 2010, confirmed on March 21, 2012, thus explains that the deduction made by an employer on the salary due to the absence of the employee and proportion of the duration does not constitute a disciplinary sanction. However, in addition to the salary deduction, the worker who multiplies the unjustified absences can also be subject to a disciplinary sanction.
In what proportion?
Since the salary is food-related, it is protected against seizure. There is what is called the seizable quota, explains David Guillouet. This quota is defined by wage brackets, which are the same as for wage garnishments. The employer must respect this bar. Set-off is thus possible within the limit of the seizable sums fixed by law. It should be noted that if the salary is protected, this is not the case for certain bonuses (attendance bonuses, transport bonuses, commissions, production bonuses, etc.) and the sums allocated for profit-sharing and participation which are seizable in their entirety. Severance pay may also be subject to full withholding.
And the salary in all this? If the latter deems that the deduction, or the amount of the deduction, is not justified, he can appeal to the Labor Court to challenge it. It will then be up to the employer to provide proof of the property of this deduction and its amount.
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