What to do about a pay differential and loss of compensation?

My employer has been adding shift differential to my pay for 12 years. Today they told me my hours do not qualify for differential pay according to their policy. They intend to remove my differential pay and seek compensation 2 years worth of the differential. I do work a non-standard schedule so I believed this pay was kosher. I never claimed or asked for the differential in the first place – it was added to my timecard by management and/or the payroll office. I am fine with losing the differential pay but 2 years of compensation is a significant amount and I feel as though I am being punished for something that is not my fault. What are my legal options?

Asked on September 1, 2012 under Employment Labor Law, Maryland


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

Your employer could potentially recover the pay differential for the past 2 years if they can demonstrate by a preponderance of the evidence (more likely than not) that their written policy *at the time* was such that you did not qualify for such payment under clear, objective criteria. If they can't demonstrate some objective policy or criteria that they can point to, however, they should not be able to recover the money--without a written policy with clear criteria, the pay to you was essentially discretionary on their part, and an employer is not allowed to later think better of and recover discretionary pay.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.