All Californians are entitled to fair wages for the labor they perform for employers. In this context, labor refers to the services rendered by the employee for an employer. There are a number of different ways in which employees are compensated for the work they do. Some are paid hourly and others work for fixed salary. Some employees such as salespersons work for commissions and others who work on a contract basis may get paid per project. The word "wages" also includes other benefits employees receive as part of their compensation packages such as sick time, vacation pay, room, board, health insurance and so on.
Table of Contents
- The Right to Wages
- When Must Wages Be Paid?
- When Are Final Wages Due?
- How Long Do I Have to File and Unpaid Wages Lawsuit in California?
- Learn About the Process of a Typical Wage Claim in California
- How Long Does a Wage Claim Take in California?
- First Steps
- Evidentiary Hearing
- Settlement Conference
- Which California Employees Are Protected by Wage and Hour Laws?
- Penalty for Unpaid Final Wages
- Can My Boss Fire Me for Filing an Unpaid Wages Lawsuit?
- Private Attorneys General Act (PAGA) Claims
- Do I Need a Lawyer?
- Contacting an Employment Lawyer
The Right to Wages
Under California laws, every worker is entitled to receive fair wages regardless of their immigration status. Employees may be paid what was agreed to in a contract or they may be paid under the California Labor Code.
Contract wages: Many workers in California accept employment at a wage that is promised to him or her under a contract. This is a binding agreement between the employer and the employee. In most cases, the promise to pay wages assumes the form of a formal written contract. However, an oral agreement is also enforceable when it comes to earned wages.
Wages under labor laws: California's Labor Code sets forth the right for employees to earn wages including minimum wage and overtime wages. It is important to distinguish that while wages are paid to employees, independent contractors receive payments for work performed under a contract. Such compensation is not considered as a "wage." But, when an employee is wrongly classified as an independent contractor, he or she is entitled to be paid the wages that are required under the law.
When Must Wages Be Paid?
California law also imposes requirements regarding when employees should be paid. Most California employees must be paid at least twice a month. Employers must set up regular paydays for their employees and let employees know clearly when they will get paid. Under California law, wages earned between the 1st and 15th day of the month must be paid between the 16th and 26th day of the same month.
Wages earned between the 16th and the last day of the month must be paid between the 1st and the 10th day of the following month. According to California overtime laws, wages for overtime earned during the work period must be paid no later than the regular payday for the next work period. Exempt employees, typically those who work in administrative or supervisory roles, may be paid on a different schedule such as once a month.
When Are Final Wages Due?
When an employee is provided with a final paycheck depends on whether he or she was fired or quit. When an employee is fired, he or she must be paid all wages earned up to and including the date of termination on the day of termination. When an employee quits and gives at least 72 hours notice, they must be paid on their last day. Employees who quit without giving notice must be paid their final notice within 72 hours after their final day of work. The final check must also include the employee's unused vacation time.
How Long Do I Have to File and Unpaid Wages Lawsuit in California?
There are strict deadlines when it comes to filing wage clams in California known as a statute of limitations. Under California law, the time limit for filing an unpaid wages lawsuit is three yeas from when the most recent wage violation took place. However, in many cases, a knowledgeable and skilled Los Angeles employment attorney may be able to help extend this deadline to four years before a lawsuit is filed.
A four-year time limit applies to a majority of wage violations in California including unpaid wage claims that stem from employers failing to pay overtime, commissions, minimum wage and compensation for rest and meal breaks. While you may have some time to get these claims filed, it would be in your best interest to file your unpaid wages claim as soon as possible.
If you don't take action right away, you could potentially lose your right to claim any unpaid wages. A skilled attorney can help you secure additional damages that could substantially increase the value of your wage claim. An experienced Los Angeles unpaid wages attorney can not only help ensure that you meet the deadlines for filing an unpaid wages lawsuit, but also that your legal rights are protected every step of the way.
Learn About the Process of a Typical Wage Claim in California
If your employer has not paid you the wages you are owed, you may want to file a wage claim with the California Division of Labor Standards Enforcement (DLSE), which is a division of the California Department of Industrial Relations. In an unpaid wages claim, also known as a wage claim, you can collect the earnings your employer failed to pay.
For example, your employer may have failed to pay you the correct minimum wage, overtime pay, meal and rest breaks, commissions and bonuses, business expenses or travel time. Sometimes, employers might make unauthorized paycheck deductions or drag their feet in providing employees their final paycheck. All these actions are illegal under California wage and hour laws.
California workers have the right to file a wage claim when their employers do not pay them the wages or benefits they are owed. A wage claim essentially triggers the process whereby employees can collect those unpaid wages or benefits. You can file a wage claim online, via email or in person.
It is important to remember that California's wage and hour laws protect all workers – regardless of their immigration status. Because this process can be complex and challenging, it would be in your best interest to contact an experienced California wage and hour attorney.
First Steps
In order to initiate your unpaid wages claim, you must file what is known as an "Initial Report or Claim" (Form 1) with the California Division of Labor Standards Enforcement or DLSE. This form, along with instructions, can be found at the DLSE's How to File a Wage Claim page. This website also has very useful information and on what documents you need to attach with your claim, where to file your claim and helpful tips on filing.
Once you file your claim, it will be assigned to a deputy labor commissioner who will then make a determination as to whether your claim should be dismissed, assigned to a settlement conference or scheduled for a hearing. It is important to note that if the DLSE does not have the authority to hear the allegations, your claim will be dismissed.
For example, if your claim is about harassment or retaliation rather than unpaid wages, your claim will likely be dismissed and you will be notified about this action. If your case is moved to a settlement conference and/or hearing, you should receive a notice with the relevant information within 30 days of filing your wage claim.
The Labor Commissioner's Office has no authority over independent contractors. However, if you believe that your employer has misclassified you as an independent contractor to avoid paying you overtime, rest/meal breaks and other benefits, it would be in your best interest to file a wage claim. The Labor Commissioner's Office may hold a hearing to determine if a misclassification has occurred in your case.
Evidentiary Hearing
If a settlement has not been reached between you and your employer at the settlement conference, your case will likely be scheduled for an evidentiary hearing. This hearing will take place in the offices of the California Division of Labor Standards Enforcement's (DLSE) offices. A hearing is similar to trial, but not as formal.
During a hearing, the labor commissioner will begin with an opening statement after which you will have an opportunity to present your case. The commissioner could ask you for clarifications or ask follow-up questions. You should bring three sets of all supporting documents including originals. One set is for you, the second is for your employer and the third set is to be submitted as evidence to the labor commissioner.
If you fail to show up to the hearing, your claim will likely be dismissed. Both you and your employer have the right to be represented by an attorney during this hearing. This is also the time to present any witnesses, such as co-workers, who can support your claim. After you present your evidence, your employer will have an opportunity to present their defense and submit evidence.
The commissioner will review the evidence and mail a written decision to you and your employer within a few weeks. Their decision will specifically state whether you are due unpaid wages from your employer, the amount and when you should be paid. You have the right to appeal the commissioner's decision. Appeals must be filed typically within 10 days.
Settlement Conference
The main goal of a settlement conference is to try and find an informal resolution for a wage claim as opposed to holding a hearing. At the conference, the Deputy Labor Commissioner who has been assigned your case will speak with you and your employer to determine if you can reach a settlement. However, the Commissioner cannot coerce you to settle the claim.
A settlement conference may typically begin with a meeting with all parties in the same room. Afterwards, the labor commissioner will put you and your employer in separate rooms and go back and forth to discuss various issues and communicate settlement offers.
If you do not reach an agreement, the claim could either be dismissed or referred to a hearing. Your claim will likely be referred to a hearing if your employer fails to show up to the conference. If you don't appear at the conference, your claim will likely be dismissed unless you have a good reason for missing the conference.
The settlement conference is not an evidentiary hearing. However, it is crucial that you bring with you copies of any important documents that support your claim. You should also come prepared with at least an idea of how much you are owed in unpaid wages and penalties and what your expectation is with regard to a settlement. An experienced unpaid wages attorney can help prepare you for a settlement conference and the best possible outcome.
How Long Does a Wage Claim Take in California?
An employee who wishes to recover wages owed can file a civil lawsuit or a claim with the California Labor Commissioner. The time it takes to resolve your wage claim can vary – whether you file a case in civil court or a wage claim with the Labor Commissioner.
Civil Court
If you file a lawsuit in civil court, your case will likely be tried within 12 months. A smaller wage claim is more likely to resolve faster than a claim that is bigger. This is because the larger your claim is, the more an employer will likely fight it. A wage claim that is filed in civil court could take anywhere between three or four months to a year.
Labor Commissioner's Office
Depending on when an employee files the wage claim, the process could take anywhere from six to nine months. The Labor Commissioner could also take several months to make a decision in the case since the commissioner is the only one who hears the cases and considers the facts. There are no jurors involved. Your claim is likely to be adjudicated faster if you have an experienced California employment attorney on your side who can help you navigate what can be a complex process.
Which California Employees Are Protected by Wage and Hour Laws?
In California, wage and hour laws apply to non-exempt or hourly employees. This means that laws that pertain to overtime pay and meal/rest breaks will not apply to you if you are an independent contactor or an "exempt" employee. Non-exempt employees are guaranteed an hourly wage and overtime pay under federal and state laws.
They must earn at least the minimum wage for every hour worked and overtime pay for any amount of time in excess of 40 hours a week. Non-exempt employees are entitled to receive 1.5 times they hourly rate of pay for hours worked in excess of 8 hours in a workday or 40 hours in a workweek. They are entitled to receive twice their hourly rate of pay if they work more than 12 hours in a workday.
If you work a job that earns a minimum wage, you are eligible for overtime pay. Such jobs are considered non-exempt. California's minimum wage in 2023 is $15.50. However, there are cities and counties in California that have a higher set minimum wage. In such cases, non-exempt employees must receive the higher minimum wage under the law.
Examples of non-exempt employees include interns, servers, retail workers, and other types of jobs in the service industry. Even if you are a non-exempt employee earning more than the minimum wage, you can still take direction from supervisors and don't have administrative roles.
Penalty for Unpaid Final Wages
When employers willfully fail to pay final wages in full or on time, California law provides for a waiting time penalty. This provides an incentive for employers to ensure that employees are promptly paid for their work. The waiting time penalty consists of a full day of wages for each day the payment is delayed. It continues to accrue for as much as 30 days after the employee leaves. The penalty is calculated by multiplying the employee's daily wage rate by the number of days that the payment is delayed, up to a maximum of 30 days. When a paycheck bounces or is rejected, a penalty of one day of additional wages for each day the check is not satisfied continued for a maximum of 30 days.
Can My Boss Fire Me for Filing an Unpaid Wages Lawsuit?
It is unlawful for an employer to fire an employee or retaliate just because the employee filed a wage claim. Workers are protected both under federal and California laws from retaliation when they participate in activities that are considered legally protected. Under the law, filing a wage claim is considered a legally protected activity.
Employees in California have the right to file a wage claim with the Division of Labor Standards Enforcement (DLSE) or to file a wage lawsuit in California or federal court against their employer without facing retaliation. When employers violate their employees' rights and take retaliatory action, workers can pursue a retaliation or wrongful termination lawsuit against their employer in addition to the wage claim.
In order to prove a retaliation allegation, employees must prove that their employer's retaliation action toward them was motivated because they filed a wage claim. Examples of retaliatory actions that are illegal include job termination, demotion and denying a promotion.
The experienced Los Angeles employment attorneys at Kingsley Szamet & Ly have significant experience helping those who have been wrongfully terminated or retaliated against seek justice and recover compensation for their losses. Call us to find out how we can help you.
Private Attorneys General Act (PAGA) Claims
In some cases, the employer may fail to pay wages in full or on time and the employee continues to work for the employer. In such a situation, the waiting time penalty doesn't apply. However, the employer may be liable for statutory fines. If an employer fails to pay employees' wages as required under the law, they are subject to a civil penalty.
For any initial violation, employers must pay $100 for each failure to pay each employee. For every subsequent violation or any willful violation (deliberately failing to pay wages), the employer will face $200 for each failure to pay each employee in addition to 25% of the amount that was unlawfully withheld. These penalties must be paid to the state of California. But, an employee can recover up to 25% of the penalty by bringing a lawsuit under the Private Attorneys General Act, also known as PAGA. Such claims are known as PAGA claims.
An employee may bring a PAGA claim by filing a civil lawsuit against his or her employer. If the employee is successful with the lawsuit, the court may award them 25% of the penalty due under the law in addition to attorney's fees, court and litigation costs. Many Los Angeles employment attorneys take such cases on a contingency fee basis, which means they don't take any fees until you recover compensation. The attorney's fee is typically a percentage of your compensation amount.
Do I Need a Lawyer?
One of the biggest mistakes you can make is to try and handle a wage claim on you own. There are a number of advantages to retaining the services of an experienced California unpaid wages lawyer to handle your claim or lawsuit.
First and foremost, California employment law can be extremely complicated to stay on top of and to understand. A skilled lawyer will have your best interest at heart and engage with your employer to resolve your case in a manner that is most beneficial to you. If a fair resolution is not reached, our employment attorneys will not hesitate to go to court to get the best possible outcome in your case.
It is also important to remember that employers are typically larger companies and corporations that have powerful lawyers on their side to protect their best interests. So, you need a resourceful employment law firm that will put its resources to work for you. The wage claim process is riddled with pitfalls that could potentially jeopardize your claim, your career and future.
You do not have to do this alone. The experienced Los Angeles unpaid wages attorneys at Kingsley Szamet & Ly will remain on your side, fight for your rights and help ensure that you are fairly compensated for your losses.
Contacting an Employment Lawyer
If your employer has not paid you wages due or has delayed payment of wages, you may be able to resolve the dispute informally with your employer, file an unpaid wage lawsuit in court or bring an administrative claim for unpaid wages and penalties. It would be in your best interest to seek the counsel of an experienced unpaid wages lawyer before deciding how you wish to proceed in your case. For more information about pursuing your legal rights, call the knowledgeable unpaid wage attorneys at Kingsley Szamet & Ly. We always offer free, initial consultations and a No Win, No Fee guarantee. Call us at 888-209-8927 to find out how we can help you.