Q: I WORKED for a company for 5 years as a general office staff. I usually worked more than 8 hours per day and every other weekend. Because we were so busy, I often had a working lunch. I was paid a fixed salary and was never paid overtime. Two months ago, I left the company. Recently, I read in your column that even salaried employees may be entitled to overtime if they worked more than 8 hours per day or more than 40 hours per week. Since I no longer work for the company, can I still claim for overtime?
A: Yes, you can still recover overtime and all other unpaid wages, even after you left the company. If you file a claim with the labor agency, you can claim up to three years of unpaid wages from your employer. If you choose to file a lawsuit in court, you can claim up to four years of unpaid wages from the time the lawsuit is filed.
Employees should act promptly because the right to make a claim is limited by the Statute of Limitations. In other words, if an employee has not filed a lawsuit to claim for unpaid wages within 4 years from the end of employment, the employee may no longer be able to make a claim as the right to do so has timed out.
Also, by making a prompt claim, the employee is able to preserve the full four-year time frame within which the amount of wages will be based. The sooner the claim is filed, the more wages the employee can legally claim.
Some employees will hesitate to contact an attorney thinking that the amount of their wage claim may not be enough to pay the attorney’s fees. However, there are law firms, like ours, that attend to initial inquiries from employees at no cost.
Picking up the phone to inquire about rights to wages may result in several advantages. For instance, an employee might think that he or she is entitled only to one kind of claim. However, a consultation with an employment attorney may yield information on other possible wages that the employee is entitled to. For example, aside from unpaid overtime, the employee may also be entitled to additional compensation for missed meal and rest breaks. There may be instances where employees are entitled to wages for uncompensated travel and training, or for reimbursement of business-related expenses. An aggregate of these claims may result in significant wage recovery to the former employee, which may be worth pursuing in litigation.
The employees should note that the law specifically gives them the right to recover reasonable attorney’s fees if the claim is filed in court. This means that if the employee prevails, part of the damages recoverable is attorney’s fees. In effect, the employee recovers the reasonable value of wages without paying out-of-pocket expenses.
Aside from the unpaid wages and attorneys fees and costs, the employees may also generally recover from employers the following:
1) Legal Interest – In any action brought for the nonpayment of wages, such as overtime compensation, 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 a penalty imposed for the violation of a law, such as the failure to pay overtime as required by law. In California, these penalties are usually recoverable in the event the wage statements or pay stubs do not contain the information required by the Labor Code. These penalties are also recoverable if the employer failed to pay within 72 hours all wages due after termination.
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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 following 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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