Q: SEVERAL days ago, I was terminated from work. To add insult to injury, my employer has not given me my final pay. When I called to ask the status of my paycheck, I was told they mailed it to me. I have waited for it but have not received it. What are my rights in this situation?
A: Your employer should have paid you immediately all compensation due to you when your employment was terminated.
California law requires employers to immediately pay all compensation due to discharged employees. Aside from pay for all regular hours worked, compensation owed to employees may also include pay for all work performed beyond 8 hours per day or 40 hours per week. It may also include additional pay for lunch or rest breaks that the employer did not provide. If the employee was eligible for vacation, he or she may also be owed payment for unused vacation time. (Note: “Use it or lose it” vacation pay policies are illegal.)
Generally, discharged employees should be paid “at the place of discharge.” If the employer tells you that they will mail the check, you must consent to such an arrangement. If the employer sent the final paycheck by mail without your consent, and the check was not received, it is considered that no payment has been made. You may also authorize the employer to pay the wages into your bank account. The employer has the obligation to make sure that you receive your payment.
If employees quit (this means they were not discharged), they should be paid at the office or agency of the employer in the county where they worked. If they resigned from work, the employer must pay all compensation due to them within 72 hours of the resignation. If they gave more than 72 hours’ notice of resignation, then all compensation due to them must be paid on the last day of their work.
If an employer willfully fails to pay all wages due to an employee after the termination, the employee’s wages continue as a penalty until paid, for up to 30 calendar days. This is called “waiting time penalties.” Hence, if the employee is regularly paid $120 per day, the employer may be held liable to pay up to $3,600 in penalty for not paying the terminated employee on time.
Such an amount may not be significant in the grand scheme of things. But if employers engaged in a company-wide practice of delaying the wages of all its terminated employees, the harm accrues to a significant percentage of workers. This is the lesson of the Home Depot case.
A class of Home Depot employees sued their employer, claiming that Home Depot violated California law by failing to pay them immediately all wages due, when Home Depot fired them from their jobs. Home Depot’s checks were often late. About 66 percent of the fired workers received their final checks within a few days and 75 percent received them within a week. A fired worker has potential damages averaging between $200 to $250. The class consists of about 6,500 fired workers over time.
Rather than continue to litigate the case, the parties agreed to settle with Home Depot agreeing to pay $1,500,000.
If an employee thinks that his or her rights have been violated prior to or during a termination, it would be smart for that employee to consult with a knowledgeable and experienced employment attorney to protect his or her rights.
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The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. Atty. Sayas’ Law Office is located at 500 N. Brand Blvd. Suite 980, Glendale, CA 91203. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com.
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C. Joe Sayas, Jr., Esq. is trial attorney who has obtained several million dollar recoveries for his clients against employers and insurance companies. He has been selected as a Super Lawyer by the Los Angeles Magazine, featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements, and is a member of the Million Dollar-Advocates Forum.