Wage Theft New

Arbitration is a matter of contract. Many employers draft arbitration clauses in employment contracts or offer letters, or have standalone arbitration agreements, or have arbitration policies in their employee handbooks which employees are required to adopt as a condition of their employment, all of which employees are required to sign if they want to get or keep their job. However, if there is no written agreement to arbitrate, you do not have to go to arbitration. Even if there is an arbitration clause or policy, it may be written in such a way as to be unenforceable. That depends on a variety of factors. Consult with an attorney at Sansanowicz Law Group to learn more about whether you will have to arbitrate your employment disputes.

Note: Union employees who are bound by a collective bargaining agreement (CBA, or contract) most likely will have an arbitration provision in the CBA. Check with your union rep or shop steward for more details about what is in the contract that applies to your employment.

Unless you are an exempt employee (meaning, you are exempt from the protections of overtime laws), your employer must pay overtime rates for overtime hours worked – although what constitutes overtime hours can vary with certain industries or if the employees at your work have voted for and approved an alternative workweek schedule (meaning, more than 8 hours in a 24-hour period). There are several tests for what constitutes an exempt employee, but the primary test common to most exemptions is the salary basis test: if you work hourly, you cannot be an exempt employee, and if you earn a salary, your salary must meet certain requirements (typically, twice minimum wage) before you can be considered exempt from overtime laws. Even if your salary meets the minimum requirements for the exemption test, you still might not be exempt based on several other factors, chief among them whether you customarily and regularly exercise discretion and independent judgment as part of your job duties (if you do not, chances are you are not exempt). Further, employers frequently misclassify nonexempt employees as exempt, either intentionally (so they can avoid paying overtime) or through ignorance, so just because you have been told you are an exempt employee does not necessarily mean that you are exempt.

Generally, in California, 8 hours constitutes a workday. Work from 8 to 12 hours in a workday must be paid at 1½ times your regular rate of pay (which must include all forms of compensation, including bonuses and commissions earned during the period in which you worked overtime hours, when calculating the overtime rate of pay. Any work over 12 hours in workday is entitled to twice the regular rate of pay. You may be entitled to further overtime compensation if you work six or seven days per week. Consult with an attorney at Sansanowicz Law Group to see whether you are entitled to overtime pay, and if so, how much.

No – minimum wage is what the name suggests: the floor below which no employer may pay an employee for hourly wages.

The statute of limitations for wage claims is three years, but most practitioners plead a separate cause of action under the Unfair Competition Law (Business and Professions Code section 17200, et seq.), which extends a fourth year to wage claims.

You can recover unpaid wages one of two ways: file a civil lawsuit in court or file an individual claim for wages with the Labor Commissioner’s Office (also known as the Division of Labor Standards Enforcement, or DLSE). A lawsuit in court may be individual or representative in nature. Consult with an attorney at Sansanowicz Law Group to learn about your rights and best options.

If your employer fires you, you must receive your last paycheck on the same day you are terminated. (The rationale is that your employer knows in advance the day it will discharge you.) If you quit, your employer has 72 hours to give you your last paycheck.

If you do not receive your last paycheck timely, your employer may be liable for “waiting time” penalties, which is your daily rate of pay (including regularly scheduled overtime hours) multiplied by the number of days your employer does not pay your final paycheck, up to 30 days maximum.

Keep in mind you must be paid all wages that you have earned and that are owed to you at the time of your separation of employment (termination or resignation). This can include accrued vacation/sick/PTO wages, unpaid overtime wages, unpaid off-the-clock or rounding wages, earned but unpaid bonuses or commissions, and unpaid premium pay for missed meal periods and/or rest breaks. Consult with an attorney at Sansanowicz Law Group to learn about what pay should be on your last paycheck.

Except for certain specific types of jobs or employees who are covered by a collective bargaining agreement, employers must pay their employees on regular paydays, either weekly, biweekly, or twice per month. If your employer misses a single paycheck, communicate with them to see if the failure to pay was an unfortunate oversight. If it is a pattern of late or missed payments, that could mean your employer does not have sufficient funds to make payroll, it could be intentional, or it could be some other bad situation.

If the payment is late and your employer has the ability to pay wages, make a written demand that your employer immediately pay you the wages you have earned. If, after you made your demand, your employer still does not pay, the failure to pay is a misdemeanor; so, too, is if your employer falsely denies how much you are owed. At that point, it will be time for you to take legal action.

As with any type of unpaid wages, you can file a civil lawsuit in court or file an individual claim for wages with the DLSE. Consult with an attorney at Sansanowicz Law Group to learn about your rights and best options.

Not if the employee wants to continue to earn wages. Unlike a tenant who withholds rent under the theory that the landlord’s failure to provide necessities has rendered the apartment uninhabitable, an employee may not refuse to work simply because the employer has not paid all the wages they are owed. The remedy for failure to receive all wages due to the employee is to file a civil lawsuit or a claim with the Labor Commissioner. Many employees sue their employer for unpaid wages while they still work for the same employer.

Note: If the reason the employer is not paying all earned wages is because the employer lacks the funds to make payroll, it may be time to look for a new job. Consult with an attorney at Sansanowicz Law Group to learn about your rights and best options.