If your employer has not fairly compensated you for work you dutifully carried out, recovering the wages you deserve can be a challenging and painful process. If you are resigning or being terminated from a job, the stress of the moment is much greater if your employer refuses to pay wages, commissions, or bonuses that are duly owed. Employers sometimes also engage in misclassification, improperly classifying workers as salaried employees to avoid paying overtime pay.
Employers are legally bound to pay wages and commissions earned by their employees, and to deliver this compensation in a timely manner. California employment law offers strong protections against employers who do not.
Whether you are on a salary or hourly wage, currently employed or recently terminated, you may have concerns about your compensation. Employees who have not been provided with duly earned wages, overtime, minimum wage, or have been forced to work off-the-clock hours can seek compensation for violations of California wage and hour laws.
While employers sometimes make honest errors, they more often deliberately pay their employees less than they are in due. Regardless of the situation, it is unlikely that your employer will regard your wage and hour claim as valid.
It is thus in your best interest to contact Wrongful Termination Law Group to help file your wage and hour claim to a successful outcome. Our employment attorneys are proud to fight on behalf of hardworking Los Angeles employees, helping them through this difficult time and recover duly owed compensation from employers who have delayed or refused their wages.
Laws protecting employee pay
The most important piece of federal legislation addressing employee compensation is the Fair Labor Standards Act (FLSA) of 1938. This set of laws sets federal rates for minimum wage and overtime. It covers private sector employers who employ at least two people, have gross revenues of $500,000 per year and up, and are engaged in interstate commerce. The interstate commerce provision is very easy to meet – the simple fact of sending and receiving out-of-state business mail qualifies a business for this.
Like many other states across the U.S., California also has its own wage and hour laws, to which every employer in Los Angeles must adhere. California Labor Code sections 201-204 address failure to pay wages, and section 510 addresses overtime.
Labor Code section 201(a) declares that “If an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately.”
Labor Code section 202(a) builds on this, stating that “If an employee not having a written contract for a definite period quits his or her employment, his or her wages shall become due and payable not later than 72 hours thereafter, unless the employee has given 72 hours previous notice of his or her intention to quit, in which case the employee is entitled to his or her wages at the time of quitting.”
Taken together, these two sections form a stringent necessity for employers to pay their employees immediately upon termination, within 72 hours in the event of your resignation, and on your last day of work if you provided 72 or more hours of notice prior to quitting.
Labor Code section 203 is the section that specifies employer penalties for not following the law regarding payments. Section 203 assesses a monetary penalty equal to one day of wages, at the employee’s standard hourly rate, for each day the employer is late, up to a maximum of thirty days. In other words, if your employer is 30 days late with your paycheck, they employer must pay a penalty of 30 days times your daily wage.
According to Labor Code section 203:
“(a) If an employer willfully fails to pay, without abatement or reduction, in accordance with Sections 201, 201.3, 201.5, 202, and 205.5, any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but the wages shall not continue for more than 30 days. An employee who secretes or absents himself or herself to avoid payment to him or her, or who refuses to receive the payment when fully tendered to him or her, including any penalty then accrued under this section, is not entitled to any benefit under this section for the time during which he or she so avoids payment.”
Keep in mind that employees are obligated by law to be available to accept payment. If you intentionally dodge your employer in hopes of causing payment to be late, or refuse to accept payment when it is offered, your employer will not owe any penalty.
Labor Code section 204(a) obligates employers to pay employee wages no more than 10 days after the final day of the payroll period. This means that if you are paid semi-monthly every month (on the 15th and the final day of the month), your pay must arrive by the 25th of the current month and the 10th of the following month, respectively. According to the Labor Code section 204(a) text:
“Labor performed between the 1st and 15th days, inclusive, of any calendar month shall be paid for between the 16th and the 26th day of the month during which the labor was performed, and labor performed between the 16th and the last day, inclusive, of any calendar month, shall be paid for between the 1st and 10th day of the following month.”
This rule is more stringent for employers paying every two weeks (bi-weekly). These employers must pay no more than seven calendar days after the end of a payroll period. The same goes for employees who pay on a weekly basis.
“The requirements of this section shall be deemed satisfied by the payment of wages for weekly, biweekly, or semimonthly payroll if the wages are paid not more than seven calendar days following the close of the payroll period.”
If employees are not paid on this schedule, then the employer is violating Labor Code section 204.
If your employer does not comply with the stipulations of 202(a), they are subject to a penalty in the form of continuing to pay you at your regular rate, for every day past your final day, up to a maximum of 30 days. This is great news as it creates an incentive for your employer to pay you quickly, and if not, to pay a significant price for being late.
Employment is a binding agreement to exchange work for compensation
California employment law dictates that all workers are entitled to receive wages they have earned, regardless of their industry, circumstances of their dismissal, and even their residency or immigration status.
When an employer and job applicant reach a work agreement which offers a worker employment at a certain wage, that agreement is binding under California law. While such agreements are normally formalized as work contracts, oral agreements also wield the power of law.
Minimum wage and overtime
Further, California employment laws give employees the right to specific wage structures. The state minimum wage applies to certain employees, as do laws governing overtime. For those employees, no contract stipulating a lower wage, or lack of overtime compensation, is neither valid nor enforceable under the law. Employers must abide by the state law and regulations.
One exception to this standard is for independent contractors, who are not afforded the same rights to wages as employees who qualify for minimum wage and/or overtime. Payments to independent contractors are not considered wages.
Employees who commonly experience wage and hour challenges
Sales representatives working on commission are faced with specific challenges in obtaining unpaid wages from their employer. They are also often faced with employers who do not abide by previously agreed-upon commission structures.
Every California employer who breaches state wage and hour laws is subject to penalties which can add significantly to their victim’s financial recovery. Willful refusal to pay an employee for just one hour’s pay can lead to penalties equal to 30 days’ pay in addition to legal fees and associated costs.
Form, type, and timing of payments
While an employee is still working, the payment and timing of his or her wage depend on the worker’s wage category, be it hourly, salaried, or commissioned.
Employers may pay by check, cash, or direct deposit into employee bank accounts. Whatever the form of payment, employers are obligated to withhold payroll taxes, according to both federal and state law.
No matter the form of payment, California employers must furnish a wage statement accompanying each payroll payment to employees. The statement must clearly display:
- Gross and net wages paid
- Number of hours you worked
- For employees paid a piece rate, the number of pieces being paid for
- Deductions from gross pay, including payroll tax, insurance, retirement, etc
This also depends on the type of compensation that the employer is subject to receive. For example, any form of benefits, wages, or vacation may not be the same for every employer and can be treated differently according to what is stated in their individual employment contract. California labor law provides different levels of remedies and protection for unpaid employees.
Employers must retain copies of wage statements for a minimum period of three years. Regardless of whether you remain employed with that business, you are entitled access to that copy at any time within that three year period. This record is one form of documentation we recommend our clients obtain at the beginning of pursuing a wage claim agains their employer.
With regard to timing: the majority of California workers must be paid at least two times per month. These payments should occur on a regular schedule which is set by the employer at the outset of the employment agreement. Furthermore, that schedule must be prominently displayed in the place of business in a place accessible by employees.
Common employer violations of wage and hour laws
Wage and hour lawsuits typically allege that employers have violated the FLSA, which establishes requirements for overtime, minimum wage and employees working more than 40 hours a week. California employment laws goes beyond the FLSA in many ways, helping to make California one of the most employee-friendly states in the nation.
In our years of experience, we’ve witnessed a number of typical scenarios in which employers violate these laws to try and cheat employees out of their rightfully-earned wages and compensation. The most common circumstances giving rise to unpaid wages occur when an employer tries any of the following:
- Fails to pay for off-the-clock work. Here the employer requires or allows the worker to perform pre-shift or post-shift work and does not compensate them for their efforts.
- Improper calculation of regular pay rate. Employer miscalculates overtime payments, which should be based on the employee’s regular rate of pay. However the regular pay rate often changes due to bonuses and other types of compensation, which employers often fail to include in overtime calculation.
- Misclassification of exempt employees: Certain employees are exempt from receiving FLSA minimum wage and overtime. Employers intentionally misclassify employees as exempt, in order to avoid paying minimum wage and/or overtime.
- Unpaid meal and rest breaks when the business requires you to stay on location: Per the FLSA and California employment laws, meal and rest breaks that last 20 minutes or less are compensable, meaning the employer must pay the employee for this time. Meal periods, usually lasting at least 30 minutes, are non-compensable, because they are not considered work time. Employers may violate these rules by failing to compensate employees for break time that should be compensable.
- Deductions from paid employees: California wage and hour laws stipulate that employers can only withhold deductions from employee paychecks when 1) state or federal law allows or requires it, 2) when the employee has authorized deductions to pay for insurance or other benefits, or 3) when a deduction to cover health, welfare, or pension benefits is authorized by a wage agreement or collective bargaining agreement.
- Failure to pay overtime or double-time pay: California wage and hour laws state that covered employees are entitled an overtime pay of at least 1.5 times their regular rate after 40 hours of work in one week.
- Failure to provide a minimum wage: Under the FLSA, nonexempt and covered workers should at least be paid the federal minimum wage. California employers are obligated to pay the significantly higher state minimum wage.
- Charges you for uniforms or any other supplies which are required to perform the job
- Fails to furnish commissions or bonuses payable to you
- Fails to provide you with unpaid wages following your termination
If you have experienced any of these at the hands of your employer, continue to the next section or contact our Unpaid Wages Lawyers today.
What can I do if my employer will not pay the money I’m owed?
Our clients often ask us “what can I do if my employer does not pay my wages?”
In California, employee wages are protected both by California employment laws and the federal Fair Labor Standards Act. These laws cover overtime pay, exempt vs. nonexempt job classifications, minimum wage, meal and rest breaks, and other important wage and hour issues.
As an employee, you have the right to be compensated for the number of hours you worked, and you should be paid twice per month or more frequently (though there are a few exceptions to this rule).
The manner of payment is different for exempt and nonexempt employees. Exempt is the category for salary employees who do not receive overtime pay; nonexempt employees are paid by the hour and are thus eligible for overtime pay.
If you feel that you are a victim of unpaid wages from your employer, here is what you should do:
- Take action as soon as possible. If your pay has not yet been reimbursed, you should take first steps as soon as possible to ensure you are paid. Civil claims for back wages have statutes of limitations between two and four years, depending on the type of claim. Seeking the advice of an employment lawyer is a good first step.
- Check for notices. Search for any notices at your workplace that show indications of company pay days, time and methods of payment. According to the California employment laws, every employer is required to specify when employees shall receive their wages and the place of payment.
- Consider your options. Explore your options and consider seeking new opportunities for employment. Although you may feel committed to your employer, unpaid wages are signs that the company is having financial problems.
- Get it in writing. Have a chat with your employer and obtain a firm commitment for the company to pay your wages.
- Contact an unpaid wages attorney. The best way deal from strength is to start by speaking to an unpaid wages lawyer who will put their years of hard-earned experience to work for you. Unpaid wages lawyers can help by providing advice about your employment rights and filing claims for the unpaid wages you rightly deserve.
- File an unpaid wages claim. Your lawyer will assist you in filing a claim at the appropriate state or federal agency. Most often this will be the California Division of Labor Standards Enforcement (DLSE)
How are wage and hour class actions formed?
The formation of wage and hour class actions is a different process to that of any other typical class action. The California wage and hour law and FLSA have determined the process for the creation of a class action, which is also known as a “collective action” with regards to wage and hour violations.
According to the FLSA, a worker who declares wage and hour violations should initially identify whether any other colleagues have previously been in the same situation.
If a worker files for a wage and hour lawsuit, a court will further provide a conditional certification. Once this is done, a plaintiff will then send a notice to potential class members who will opt-in to the wage and hour lawsuit. The courts will help facilitate the process by requesting organizations to post opt-in and notice forms at work sites, which will provide them with the necessary contact information for their employees.
We represent employees.
We understand that it is often very difficult to speak to your boss or supervisor about unpaid wages. However, If you do not speak up, you might not receive your pay at all.
At Wrongful Termination Law Group, our experienced attorneys can help you protect your employment rights and your job. We hold employers accountable to pay the wages and commissions they are obligated to provide. We give each client personalized and individual attention, knowing that the best outcomes result from the most thorough knowledge of each wage and hour case’s specifics.
Our team is dedicated to recovering the back wages that employees deserve from their former employers. We combine legal expertise, hard-fought experience, and a tireless work ethic with a deep respect for our clients and the upheaval these challenges can cause in their lives and careers.
We handle wage theft lawsuits very aggressively, and can often resolve straightforward matters quickly. Our law firm is very experienced in unpaid wage case law and a broad range of related California employment laws. Our goal is always to pursue the interests of our client to successful ends, and to be as clear and transparent as possible about the process.
Contact our unpaid wages lawyers at Wrongful Termination Law Group today for your free case evaluation, and keep in mind that we charge no fees until we win or settle your case.