A number of federal and California laws protect the right of employees to be paid the wages they earn. Basic contract law requires employers to keep their promises to pay wages. Minimum wage laws assure that nearly all employees are paid at least a minimum wage for the hours they work, even if they are paid on a commission or piece-work basis.
In California, overtime laws protect the right to be paid a premium wage for hours worked in excess of 8 in a workday or 40 in a workweek. Employees should also receive overtime for working on a seventh consecutive day. Nonexempt employees should receive time-and-a-half for overtime hours, or double time if they work more than 12 hours in a day or more than 8 hours on a seventh consecutive day.
Employees have the right to be paid on time, and may be entitled to a penalty payment if final wages are not paid on the day they are fired. There should be no confusion about the wages an employee receives because an itemized wage statement should be provided with a wage payment, explaining all deductions that were made from gross pay. No deductions (other than those required by law, such as payroll taxes) can be made from a paycheck without an employee’s consent.
Unfortunately, disputes about wage payments are all too common. Here are some steps employees can take if they believe that an employer has violated a wage law or has not provided wages and benefits that were promised.
1. Talk to the Employer
Sometimes employers make honest mistakes. They might misunderstand a time card or make a math error when they compute wages. Calling the error to the employer’s attention might result in a prompt correction.
On occasion, employers don’t understand the law. Unfortunately, some employers pretend not to understand the law. For example, a salesperson who works on the sales floor and is paid a straight commission might be paid a $300 commission after working a 50 hour week. That employee has been denied minimum wage and overtime. The employer might not realize that minimum wage and overtime laws apply to commissioned salespersons. If the employer is honest, explaining the entitlement to minimum wage and overtime might change the employer’s wage payment practices.
An employee who complains to an employer about the employer’s failure to pay minimum wage or overtime is protected from retaliation. An employee is entitled to bring a retaliation claim if the employer takes some form of negative action (such as terminating employment, reducing hours, or assigning extra job duties) as retaliation for complaining about a wage law violation. For that reason, employees should be respectful but fearless in asserting their right to be paid the wages to which they are legally entitled.
2. Make a Federal Wage Claim
When a dispute with an employer involves unpaid minimum wage or overtime, the employee can file a complaint with the U.S. Department of Labor Wage and Hour Division. The Department is required to investigate complaints and may decide to take legal action against an employer that is violating the law.
The Wage and Hour Division only investigates violations of federal law. Employees should determine whether federal or state law is more favorable before deciding whether to file a federal or state wage claim. For example, if a claim concerns an employer’s improper classification of an employee as exempt from overtime, the employee should compare the federal and state exemption rules to determine if the employee might be exempt under one rule but not the other.
Depending on the nature of the claim, employees might obtain a better result by filing a claim with the Wage and Hour Division, or they might obtain a better result by filing a claims with the State of California. Employees must generally chose one or the other.
3. Make a California Wage Claim
In many cases, California law offers stronger protections to California employees than federal law. For example, California overtime law makes overtime pay available in situations where federal law does not. California’s minimum wage is also higher than federal minimum wage. In many cases, it will therefore be preferable to file a wage claim with California’s Division of Labor Standards Enforcement (DLSE).
In addition to unpaid minimum wage and overtime claims, the DLSE will consider claims involving:
- Unlawful deductions from a paycheck
- Failure to pay employees for mandatory rest breaks
- Failure to pay employees for work performed during a meal break
- Failure to pay final wages on time
- Certain other claims for unpaid wages or commissions
- Certain claims for unpaid vacation pay
- Certain claims for benefits that were promised but not provided
- Paychecks that bounce
- Violations of split shift premium pay and reporting time pay requirements
- Failure to provide a complete and accurate wage statement
Forms and instructions for filing wage claims with DLSE are available on the DLSE website. Acting promptly is important, because employees may lose their right to make a wage claim by waiting too long.
Making a wage claim is a protected activity. Both California and federal law prohibit employers from retaliating against employees because they engaged in a protected activity.
4. File a Lawsuit
As a general rule, wage claims filed with a state or federal agency are a faster and less expensive way to get relief than filing a lawsuit. However, some claims can only be asserted in a lawsuit. If a claim is essentially one for breach of contract (the employer has complied with federal and state laws but has not paid the wages or benefits the employee expected to receive), it may be necessary to start a lawsuit to obtain a remedy.
Even if the claim is one that could be resolved by filing a wage claim with a state or federal agency, there are sometimes advantages to filing a lawsuit. For example, an employee who wants to be represented by a lawyer might find it advantageous to file a lawsuit, because the employer might be required to pay the employee’s legal fees if the employee prevails.
Class action lawsuits offer remedies to large numbers of employees who have experienced the same violation of a wage and hour law. Class action lawsuits provide employees with more leverage than filing individual claims.
5. Get Advice from a Lawyer
The best starting place is often to get advice from a California employment lawyer. An employment attorney at Arshakyan Law can analyze your claim, compare state to federal law, and tell you whether it makes sense to file an administrative claim or a lawsuit.