EMPLOYEES who have been treated unfairly asked us on what they can do to help themselves without necessarily filing a lawsuit. One of the most common questions has to do with unpaid wages: Paycheck was not received or was short on hours. It does not reflect overtime pay or payment for missed meal or rest breaks. Sometimes, the paycheck does not reflect unused vacation pay.
In California, wages must be paid at least twice a month on the days designated in advance as regular paydays. The employer must establish a regular payday and is required to post a notice that shows the day, time and location of payment of wages. Failure to post the payday notice and failure to pay wages in good funds on the designated regular payday are violations of the law.
Having said that, if the employee did not receive a paycheck or the paycheck did not contain all of the hours the employee worked, the employee must first determine the reason for these. It might simply be an oversight on the part of the payroll staff and something which can be corrected immediately.
It is important to note that if the employee has a timecard and the timecard was not submitted at the end of the earning period, the employer still must pay the employee on the established payday regardless of whether the timecard was submitted. The law does not allow the employer to require the employee to wait until the timecard is turned in or until the next payday. The employer can pay the employee, even without having the employee’s timecard, by paying all of the wages that the employer reasonably knows are due for the employee’s regularly scheduled work period.
There may be concerns that arise in connection with the employer’s time-keeping records. These include rounding or time-shaving practices, erroneous time clock punches, and non-distinction of work and meal and rest periods. If the employee feels that the employer is not keeping proper time, the employee may keep a log of his or her hours worked. The employee can request a copy of the timecard generated by the employer. These timecards can then be compared with the employee’s personal log for accuracy.
If the employee has spoken to the employer about the unpaid wages, but the employer still has not paid, the employee may file a claim with the small claims court. In the small claims court, claims for damages of $7,500.00 or less may be made. Employees do not need an attorney in small claims court.
Or the employee may file a claim for unpaid wages with the Department of Labor and Standards Enforcement (DLSE). This office can adjudicate the claims of the employee for back wages and other applicable penalties.
However, there are instances when employees need to file a lawsuit to recover their unpaid wages. This is true particularly for substantial claims like unpaid overtime or missed meal and rest breaks that span several years of employment. The full amount of wages, penalties, and interest due to the employees can be determined with the assistance of an experienced employment attorney.
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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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