THE failure to pay proper overtime compensation may give rise to other violations of California’s labor laws. These additional violations result in other damages that an employee may recover from the employer.
In addition to the actual overtime compensation owed to the employee (computed at 1.5 or 2 times the employee’s regular rate), employees may recover the following:
1) Legal Interest – In any action brought for the nonpayment of wages (overtime compensation is such a wage), the court shall award interest on all due and unpaid wages at the rate of interest specified by law. This interest shall accrue from the date the overtime payment is due and payable.
2) Statutory Penalties – A statutory penalty is imposed for the violation of a statute and recoverable by the employee. In the case of labor laws, a statutory penalty is usually a fine imposed against the employer for violating statutory labor provisions. Generally, statutory penalties for overtime violations include waiting time penalties and record-keeping penalties.
Waiting time penalties are assessed against the employer when there is a ‘willful failure to pay wages’ due to the employee at the conclusion of the employment relationship. The penalty is measured at the employee’s daily rate of pay and is calculated by multiplying the daily wage by the number of days that the employee was not paid, up to a maximum of 30 days.
Record-keeping penalties are assessed against the employer when there is a ‘knowing and intentional failure’ by the employer to keep and furnish accurate itemized wage statements to the employee. The employee is, therefore, entitled to recover the greater of all damages or $50 for the initial pay period of the violation and $100 per employee for each violation in a subsequent pay period, not exceeding an aggregate penalty of $4,000.
3) Attorney’s Fees and Costs – If the employee decides to sue the employer for overtime compensation, the Labor Code specifically provides employees a basis to recover reasonable attorney’s fees and costs. In short, if the employer refuses to pay overtime and the employee sues and wins, the employer will also have to pay the employee’s attorney’s fees and costs.
4) Civil Penalties – A civil penalty for a labor violation is a monetary assessment against an employer to compensate the employee’s harm. A civil penalty is not meant to be punishment for a violation but rather a means of restitution for wrongdoing. On top of the statutory penalties, the following civil penalties may be additionally assessed against in employer for an overtime violation:
a) Civil Penalties for Overtime Violations (computed at $50 per underpaid employee for the initial violation and $100 per underpaid employee per subsequent violations)
b) Civil Penalties for Timely Payment Violations (computed at $100 per unpaid employee for the initial violation and $200 per unpaid employee per subsequent violations)
c) Civil Penalties for Record-Keeping Violations (computed at $250 per underpaid employee for the initial violation and citation and $1000 per underpaid employee per subsequent citation)
Civil penalties are recoverable by the Labor Commissioner. However, an employee who pursues an action under the Private Attorney General Act (PAGA) may recover 25% of civil penalties.
The right to overtime compensation is important. Hence, California law provides ample protection to employees. However, the proceedings to enforce such a right may require a serious legal battle. Employees who want to pursue an overtime claim are better served by obtaining experienced legal help.
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C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully obtained significant results, including several million dollar recoveries for consumers against insurance companies and big business. He is a member of the Million Dollar-Advocates Forum—a prestigious group of trial lawyers whose membership is limited to those who have demonstrated exceptional skill, experience and excellence in advocacy. He has been featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements for his professional accomplishments and recipient of numerous awards from community and media organizations. His litigation practice concentrates in the followaing areas: serious personal injuries, wrongful death, insurance claims, unfair business practices, wage and hour (overtime) litigation. You can visit his website at www.joesayas law.com or contact his office by telephone at (818) 291-0088.
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