Yesterday I was discharged by my former employer. I received a final wage check which was dated 3/12 and stated that the pay was through 3/12. I worked on 3/13 and 3/14 so I have a clear cut case for missing final wages. By my calculations, I was also not paid for 3/10 through 3/12 and two benefit days.

Here are my questions:

Does the waiting period (for calculating the penalty) begin from the date of termination automatically or do I need to run to the nearest DLSE office and file a claim?

In reading the labor code, and given the fact that I was clearly not paid for at least two work days, I don't believe the company can make a "good faith" claim to avoid the penalty.

However, am I obligated to make an in-person or by mail claim for my missing wages to my former employer _before_ filing a DLSE claim?

Thanks in advance!

Yes, you are owed for the two days you worked, and yes, that payment is late. If by "benefit" days, you mean vacation/PTO, yes, that was due as well. If you're talking about sick pay, that needn't be paid out under CA law.

The claim form does ask if you have requested these wages from the employer, when you did so and by what method.
http://www.dir.ca.gov/dlse/HowToFileWageClaim.htm

Have you notified your former about your missing wages, and they ignore your request? Either way, you still can file a claim, either file a claim with your local DLSE office or by mail along with all your supporting documents.

I notified my previous supervisor this morning directly by email. I was discharged yesterday and only determined this morning that my final wages were incomplete. I have prepared a claim form and indicated that I have made the claim by "mail". If email doesn't qualify here, then I can certainly send a request by mail but I was attempting to make the request on a timely basis and not delay the process by using the mail.

The question is am I _required_ to make an in-person or _mail_ request for missing wages from my previous employer _before_ filing a DLSE claim? I couldn't find anything either way on that.

(and no, I'm not claiming for sick time - just wages, accrued vacation and unpaid holiday)

Thank you!

Well, like I said, the form does ask you if you asked for the wages, when, and did you call or write or email. You can see that yourself on the form I gave you the link to.

Unless we're talking floating holiday here that is accrued and used just like vacation time, however, the law does not required that be paid at termination.

Patty

Thanks for the feedback. Specifically, I had determined that I was not paid for my holiday benefit on at least January 1st, 2007 and 2006 (and possibly earlier.) Prior to my discharge, I had submitted a claim to the payroll department but had not received payment. This is a documented Holiday benefit available to all full-time employees.

I really cannot claim for this after discharge? I believe you but it seems surprising. (It turns out that there are apparently other employees who were not paid for this particular holiday - probably a system issue.)

Holiday pay is not required by law in any state.

It may be company policy to provide holiday pay, but there is no wage and hour law requiring employers to do so. So, the failure to pay is an internal issue only for which you have no legal recourse. Sorry.

Honestly, you shouldn't have contacted anyone yet. Waiting time penalties accrue for up to 30 days. You should let them find the mistake or wait about 20-30 days and then file.

Honestly, you shouldn't have contacted anyone yet. Waiting time penalties accrue for up to 30 days. You should let them find the mistake or wait about 20-30 days and then file.

:eek:

Depends on how badly the OP needs the money. :D

It is unlikely that waiting 30 days to demand the wages would benefit -- and it would probably hurt you case.

The company is just going to say they made some type of clerical error. Such a mistake eliminates the willful requirement to pay the wages.

If you wait 30 days to tell them about it, their defense will simply be, "It took the Plaintiff 30 days just to figure it out. We should not be penalized for simply making a mistake that would take someone 30 days to figure out."

However, if you clearly articulate exactly why they owe you the money, and then they still refuse to pay, you are much more likely to get the penalties. The waiting time penalties are not a "gotcha" to employers. They are there to penalize willful violations -- not mere oversights and mistakes.

If you were let go, and infact did not quit, you don't need to make a demand for anything from the employer. They should've already known. You should be paid immediately at the time of termination. How an employer could say not being paid upon being let go was a mere "oversight" is beyond me, as the employer is the one who ended the employment relationship. This is willfully withholding final pay. Plain and simple.

I think what I am getting at is that the company likely did make a mistake. Of course, I don't know the size of the company to determine how realistic that is. For instance, if it is a 5 person company, the owner will write the checks herself and would clearly know what days were worked. In this case, it is not likely any type of mistake. If it is a 500 person company, some clerk in HR will simply enter a termination date that was put on a piece of paper by someone, and then a computer will print a check. In this case there are numerous places where a simple error could occur and you are not going to win on a waiting time penalties case.

All I am saying is that many employers do make honest mistakes in payroll. If you search this forum you will find numerous examples of employers dramatically overpaying employees for months. Likewise, they can and do make mistakes that cause wages to be underpaid. A judge can tell when you are trying to "game the system" and will not award anything -- and failing to notify the employer for 30 days sure looks like "gaming" to me.