Waiting Time Penalties for Unpaid Wages

[jimmychoo]

I was terminated and I was not paid wages for my last day of employment. The office administrator stated on one occasion that compensation was included in a check referenced only as "vacation pay." On another occasion she states that she let me go early on the day of termination. I was able to prove that the check for vacation pay was for my accrued vacation only. I was also able to prove that I had not left the office until after the end of the workday. After numerous demands for compensation and for waiting time penalties pursuant to Labor Codes 201 and 203, I was finally compensated (31 days after the date it was due). I advised my employer of my intent to file my claim for waiting time penalties and provided them the opportunity to advise me in writing if they disagreed with my position. After not receiving any response, I filed a claim for waiting time penalties with a cover letter setting forth the facts and also provided documentation to support my claim. At our conference with the Deputy Labor Commissioner I felt uncomfortable because gestures were made indicating that the commissioner and the office administrator somehow knew each other. In any case the conference started by the commissioner asking what happened. The office administrator started talking about my work history and making untrue statements which were irrelevant to my claim. When she finally got to the point about the unpaid wages, she now states that she did not have my timecard for the last day even though I had already advised her that I was told by the receptionist the timecard was submitted after I left the office. And then she proceeded to say that after she spoke to me in the morning she knew I was upset and thereafter she could not find me anywhere in the office. I advised that I was sitting in an empty office doing my work because I did not want to be interrupted and that the lead secretary/supervisor was well aware of this including the attorney with whom I worked, in fact the staff in our department all knew where I was. However, the commissioner kept trying to come up with proof of compensation. I was asked if anyone could vouch for my departure time. I had already provided her with the facts and documentation. I was then asked if I would settle for less than what I was requesting or I would have to wait for a hearing to be set 60-90 days. I felt pressured because I needed the money because I am still unemployed. (1) When does the waiting time penalty start to accrue? At time I requested my wages or the date they were due? (2) Is there anything I can do to get the original amount requested if I am entitled without having to wait 80-110 days for a hearing (they have 20 days to pay settlement amount)?

 

[cbg]

White space and paragraphs are your friends.

In what state is this? Not all states have waiting time penalties and of the states that do, it is not always payable to you; sometimes it is payable to the state.

 

[jimmychoo]

Reply to response

I am in California. Waiting time penalties are paid to the employee/plaintiff. Also, if an employer misinterprets a labor code resulting in underpayment of wages, would that be considered willful?

 

[cbg]

Yes, I agree that in CA waiting time penalties are paid to the plaintiff but you didn't tell me you were in CA, did you?

An innocent misinterpretation will not be considered willful. A deliberate misinterpretation will.

 

[jimmychoo]

Definition of Willful

I live in Sherman Oaks, California.

The definition of willful.... Is it willful when I was given a check for accrued vacation and the only notation on the check stub was "vacation pay." It was not until the issue of unpaid wages was brought up that I was advised that the vacation check also included compensation for my last day based on an average of the total hours worked the previous two weeks which was unfair and I disputed this on the bases that (1) I worked on that day, (2) I was out sick with the flu for 4 days during that two week time period, and (3) my accrued vacation hours was that reflected on the check. I was told that I should accept the check as a gift or as compensation for hours not worked because I was not entitled to any vacation until my anniversary date. I advised her that pursuant to Labor Code 227 my vacation started to accrue on my first day of employment and cannot be forfeited. Instead of researching and reviewing her records she repeatedly denies my numerous requests for compensation and ignores my claim of various Labor Code violations. She finally reluctantly paid me (31 days later) with the provision that I personally would be the one to pick up the check and the check was noted "disputed wages." I consider it willful if after repeatedly reminding her of the various Labor Code violations it took her 31 days to pay me still claiming the wages are disputed but does not provide any support for her position. I spent a great deal of time researching these issues. Then at the conference she claims that she did not have a timecard for me for that day and did not know where I was because I was not at my desk. But she was able to find me when she called me into her office to terminate me. Then the commissioner asks me if anyone can vouch that I was at work that day and proceeds to ask if I will settle for half of the amount I am requesting. Please give me your opinion on this as I would like to be able to get what I am legally entitled.

Sorry for this lengthy reply but as you can see, I am very upset.

 

[cbg]

I don't think this is one that I can settle for you. You're going to have to apply for the waiting time penalties through the DLSE and see whether or not they agree that it was wilful or not. After all, at the bottom line, their opinion is the only one that matters.

Good luck.