Wage theft is a term that covers a number of different types of pay violations. Wage theft is said to have occurred when employers shortchange their workers by not paying them the minimum wage, required overtime, make improper deductions or refuse to pay them altogether. Low-income workers, who comprise about a third of California's workforce, are particularly vulnerable because they could face financial devastation when their employer does not pay them the wages that are due.
These are individuals who often perform low-paying jobs such as washing cars, waiting tables, picking fruits and vegetables, stocking warehouses, sewing clothes and cleaning restaurants. But, any worker can become the victim of unpaid wages. If you believe that your employer has shortchanged your wages or has failed to pay the wages that you deserve to get, it is important that you contact an unpaid wages lawyer to understand your legal rights and options.
Examples of Wage Theft
The following are some of the most common examples of wage theft in California:
Unpaid minimum wage: On January 1, 2020, California's statewide minimum wage increased to $13 per hour for employers with 26 or more employees and $12 per hour for employers with 25 or fewer employees. In the city and county of Los Angeles, as of July 2020, the minimum wage for employers with 26 or more employees was $15 per hour and $14.25 for those with 25 or fewer employees. If you are an employee in Los Angeles, you should be paid the higher minimum wage. However, some employers tend to shortchange their workers and not pay them the minimum wage that is due. This is one of the most common types of wage theft.
Not paying overtime: Both federal and California laws require nonexempt employees to be paid overtime wages when they work more than 40 non-overtime hours in a workweek. But, California law goes even further than federal overtime protections. In California, overtime must be paid when an employee works more than 8 hours in a workday, more than 40 hours in a workweek or a seventh consecutive day in any workweek. The usual overtime rate of pay is one and one-half the employee's regular rate of pay. However, the employee is entitled to double time when he or she works in excess of 12 hours in a workday or in excess of eight hours on the seventh consecutive workday in a workweek.
Not receiving rest and meal breaks: Under California law, employees who work more than five hours in a day are entitled to a 30-minute meal break. But, an employee may agree to waive that meal break if he or she will not work more than six hours in the day. In addition, employees who are working more than 10 hours in a day must also be given a second 30-minute break. Rest breaks and rest periods are also required under California labor regulations. The length of required rest periods must be at least 10 minutes for each four hours or a substantial fraction thereof that the employee will work in the day. Rest breaks must be counted as time worked and must be paid time. They must also be in the middle of the employee's work period.
Bounced paychecks: Under California Labor Code, if you deposit your paycheck and it bounces, your wages continue as a penalty until your employer makes good on the check. The penalties can add up for as much as 30 days and continue to accrue even if you are still working for the company.
Final paychecks not paid: California's employment laws state that departing employees are entitled to receive their final paycheck almost immediately. Employees who quit must get their final paycheck within 72 hours of giving notice that they're leaving. Employees who are fired must be paid on the same day that they are terminated. California final paycheck laws also require that the final paycheck include all wages and business expenses that the employee is owed. The final paycheck must also include the cash value of benefits owed to the employee such as accrued vacation time.
Non-reimbursed business expenses: In some cases, employers must also pay any business expenses incurred by the employee that have not been reimbursed such as travel, memberships to professional organizations, mileage, etc.
Unpaid sick leave: California law also requires employers to provide paid sick leave to employees. You are entitled to earn one hour of paid sick leave for every 30 hours worked. If your employer doesn't allow you to accrue or use paid sick leave, you are entitled to be paid for any time you had to take unpaid.
Who Enforces The Law?
The Wage & Hour Division of the U.S. Department of Labor enforces laws relating to unpaid wages. This type of enforcement is carried out by investigators located around the country who conduct investigations and gather data on wages, hours, and other employment practices to determine whether or not an employer has committed a violation.
When violations are discovered, these agencies may recommend changes in employment practices to bring an employer into compliance. It is a violation to terminate an employee for filing a complaint or for participating in a legal proceeding relating to the Fair Labor Standards Act (FLSA). Employers who willfully violate these laws can face criminal prosecution and fines of up to $10,000 per violation. Sometimes, they could also face imprisonment.
In California, wage laws are found in the California Labor Code and the California Industrial Welfare Commission (IWC) Wage Orders, which provide for the overtime and minimum wage rates. The Division of Labor Standards Enforcement (DLSE) enforces these laws.
What Remedies Are Available to Me?
There are a number of ways under the FLSA for an employee to recover unpaid minimum and/or overtime wages. The Wage & Hour Division may supervise payment of back wages. The Secretary of Labor may bring a lawsuit for back wages and an additional penalty called "liquidated" damages, which could essentially double the damages awarded to the employee. An employee also has the right to file a private lawsuit demanding back pay and an equal amount as liquidated damages in addition to attorney's fees and court costs. The Secretary of Labor may obtain an injunction to restrain an employer from violating FLSA including the illegal withholding of minimum wage or overtime pay.
How Do I File a Claim?
To file a complaint for unpaid wages under the FLSA, employees may go either to the Wage & Hour Division, which may pursue a complaint on your behalf, or file your own lawsuit in court, which means you would need to retain the services of your attorney.
It is important that you contact the Wage & Hour Division as soon as possible. In California, in order to file your claim, you must complete an Initial Report or Claim (DLSE Form 1) and file it with the Department of Labor Standards Enforcement, which is a division of the California Department of Industrial Relations. The form will ask you to fill in information about you, your employer, your work schedule and what type of wages or penalties you are claiming.
What Documents Should I Include?
The DLSE asks that workers filing a claim seeking unpaid wages include the following documentation in order to help them evaluate how much they are owed:
- Hours worked: Copies of any records that can show how many hours you worked should be included. Calendar entries or journal notes can be useful as can time cards filed with your employer.
- Paystubs: Copies of any paystubs or pay slips you received for the time period during which you are claiming unpaid wages.
- Bounced checks: You should include copies of any checks that bounced back due to insufficient funds.
- Notice to employee: A copy of this notice that your employer was required to give you at the time of hire. This document includes information about your employer including their legal name, address and your agreed-upon hourly rate of pay.
The DLSE will also ask your employer to provide the above documents. Your employment attorney can help you get copies of these documents as well. If you have additional documents such as an employment contract showing your employer's promise to pay to at a certain rate, you should include that as well.
What Are the Time Limits for Filing a Claim?
There are strict time limits within which an unpaid wages claim must be filed. You must file a lawsuit in court within two years of the violation for which you are claiming back wages, except in the case of an employer's willful violation, in which case a three-year statute applies. It is best not to wait to file your claim. Don't cut it too close. It may also be helpful to consult with an attorney before you file your claim. The “statute of limitations” for California wage and hour lawsuits is three years from the date when the most recent violation has occurred.
How Much Can I Get for My Wage Claim?
Under California law, if your employer failed to pay you at least the minimum wage, you are entitled to the difference between that what you actually received as payment for each hour that you worked. For example, if your employer in Los Angeles paid you $13 (California minimum wage rate) as opposed to $15 (Los Angeles minimum wage rate), you are entitled to $2 for every hour worked.
If your employer did not pay you overtime, you can get an extra 50% of your regular wages for each overtime hour worked. You are also entitled to payment for any business expenses for which your employer failed to reimburse you. In addition, you can also get any unauthorized deductions your employer made from your paycheck and any tips or commissions that were withheld.
Under California law, you can also collect a variety of penalties for certain types of wage violations such as failing to provide meal and rest breaks, failing to provide proper paystubs, and not providing a final paycheck on time.
Private Cause of Action
Sometimes, rather than going through a state agency, an employee may choose to pursue a private cause of action against the employer. In such cases, an employee may discuss the case with an employment lawyer who can advise him or her about the advantages with a private cause of action such as the potential for higher awards or quicker case resolution. You may also be able to file an unpaid wages claim in small claims court if the amount in question does not exceed $5,000.
Under California law, workers cannot be fired for exercising their rights and filing an unpaid wages lawsuit. An employer is prohibited from taking retaliatory action including termination against an employee for bringing up wage and hour violations or for filing an unpaid wages lawsuit. Firing an employee for filing an unpaid wage claim is considered "wrongful termination." If your employer retaliated against you for bring a wage and hour lawsuit, you may have additional cause of action against your employer.
In some cases, where a number of workers have been denied fair wages, a group of individuals can band together as a class and sue the employer seeking damages. The advantage of a class action lawsuit is that the attorney can devote more time and resources to the case.
Contacting an Experienced Lawyer
Not being paid the wages you are due can cause serious financial hardships. There are several federal and state laws that protect employees from being exploited in this manner. If you believe your California employer has shortchanged your wages or has failed to pay you fair wages for work done, it is important that you contact an experienced Los Angeles wage and hour attorney who can fight on your behalf and help you receive compensation for your losses.
The knowledgeable employment attorneys at Kingsley & Kingsley represent our clients on a contingency fee basis, which means that you do not pay any fees unless you win or recover compensation, and you will never have to pay out of pocket. Call us at 888-209-8927 for a free initial consultation.