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"Fired" by being taken off the schedule? - California

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  • "Fired" by being taken off the schedule? - California

    Hi all,

    I have a complicated problem.

    Over a month ago I was hired by a restaurant as a server. I was told that I would be given a 2 week trial period for employment.

    The manager was one of those in your face ticking time bombs. My first day serving I made a small mistake and was told that I would know why I wasnt put on the next weeks schedule. I was also reprimanded for asking any questions (how are you supposed to get good at what you are doing without asking questions).

    I was also yelled at in front of customers for picking up a glass from the table (which was apparently a no no).

    I worked there for a week and a half. On a Sunday, after getting ready for work and walking out the door, I was called by my manager and was told that too many people were scheduled for the day and not to come in.... 15 minutes before my shift started!

    Monday (the next day) was the start of the next weeks schedule, which was
    not yet posted. I asked him what time I worked the next day and he replied that he would call me when the schedule was made.

    I never got the call. That Tuesday I went in to check the schedule and I was not on it.

    This gets me to the question about my last check...

    Its been about a month since I worked for the restaurant. Apparently they make a habit of doing this (apparently they have hired 15 people this year alone and fired them all in the first 2 weeks).

    I still have not received my check.

    I went in 2 weeks ago (at the end of the pay period for which I worked) to get my check and they said they mailed it to me.

    I still have not received it.

    I called them today and asked the manager where it was at. He told me to ask the mail man. I responded that California labor law required them to hand it to me in person and I would be in tomorrow to pick it up.

    "Whatever then" is what he said and then hung up the phone.

    So, what should I do? I know they have broken multiple labor laws but how should I respond?

  • #2
    Oooh, you get to have fun with this one. There is a California statute that says that they have to pay you a day's wages for each day they don't pay you your final pay, up to 30 days wages. It also provides for attorney's fees if you have to sue. Since it's so close anyway, you may as wait until the 30 days is up and then send them a certified letter citing the code and making a demand for your pay plus the penalties, and mention the attorney's fees if you have to sue.

    203. (a) If an employer willfully fails to pay, without abatement
    or reduction, in accordance with Sections 201, 201.3, 201.5, 202, and
    205.5, any wages of an employee who is discharged or who quits, the
    wages of the employee shall continue as a penalty from the due date
    thereof at the same rate until paid or until an action therefor is
    commenced; but the wages shall not continue for more than 30 days. An
    employee who secretes or absents himself or herself to avoid payment
    to him or her, or who refuses to receive the payment when fully
    tendered to him or her, including any penalty then accrued under this
    section, is not entitled to any benefit under this section for the
    time during which he or she so avoids payment.
    (b) Suit may be filed for these penalties at any time before the
    expiration of the statute of limitations on an action for the wages
    from which the penalties arise.

    If that doesn't work, you can file with the labor board, but there are others here that know what will work better and how the penalties work if you file with the board.

    Good luck.
    I am not an attorney, and don't play one on TV. Any information given is a description only and should be verified by your attorney.

    Comment


    • #3
      Wow...

      I really do get to have fun with this one.

      Thanks for your response.

      So does that mean that the 30 days starts from the day that I went in for my check and they said they "sent" it?

      Comment


      • #4
        I think the date is from the date you're fired. Not sure how that's calculated in your case, maybe the date they wrote you off the schedule.
        I am not an attorney, and don't play one on TV. Any information given is a description only and should be verified by your attorney.

        Comment


        • #5
          Originally posted by Alice Dodd View Post
          If that doesn't work, you can file with the labor board, but there are others here that know what will work better and how the penalties work if you file with the board.
          I've got a little experience in helping people in this area. First off, don't expect you will get rich quick. Labor board action takes a good six months. With an attorney, you won't get a settlement quicker unless the company gets scared and gives up.

          Labor board people in California are good at looking out for workers. I believe that a good attorney will identify a few ways of raising the claim that the labor board might miss, but I don't know the details of enough cases to be able to prove that statement.

          With such a short employment period, your claim is quite limited - the 30 day period is longer than your employment. You can go either way; in this case I'd recommend filing a complaint with the labor board.

          http://www.dir.ca.gov/dlse/Form1.pdf
          Please post questions on the forum rather than sending me a private message or email. That way others who have similar issues have access to the discussion.

          Comment


          • #6
            So does that mean that the 30 days starts from the day that I went in for my check and they said they "sent" it?
            Waiting time penalties would accrue starting the last day you worked.
            "The most patriotic people in America are the working class" - Cecil Roberts - President UMWA

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            • #7
              Thank you for all of your help. I will file the complaint with the labor board.

              Should I still go in today and try once again to get my check?

              Comment


              • #8
                Do they say they have it?
                I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

                Comment


                • #9
                  No, I have not talked to them since yesterday but how are they supposed to hand it to me if I do not actively keep going in?
                  Last edited by bradlyb; 10-21-2009, 07:10 PM.

                  Comment


                  • #10
                    They have the obligation to pay you. By law you should be paid final wages immediately at the time and place of termination. You have no obligation to continuously check in. You needn't come in unless you are told your check is ready.
                    "The most patriotic people in America are the working class" - Cecil Roberts - President UMWA

                    Comment


                    • #11
                      I have a feeling that they wont be calling me any time soon.

                      I am a little confused by exactly how the following applies:
                      By law you should be paid final wages immediately at the time and place of termination.
                      .

                      Since I was never informed that I was terminated and was just taken off of the schedule when should I have received the pay check?

                      Is an employer, however briefly you are employed by them, required to let you know that you are terminated?

                      Also, this is slightly off topic but I am interested. I was required to purchase a uniform (black slacks, white shirts, tie, black shoes, all of which I did not own before being hired). The amount of time I worked there does not even cover my out of pocket costs. Is there any way to make them reimburse me?

                      Comment


                      • #12
                        My understanding is that being taken off the schedule does not invoke the "final pay" regulation. You should have received your pay for time worked on the normal pay schedule.

                        What does the employer say when you call and ask about your employment status?
                        I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

                        Comment


                        • #13
                          Originally posted by bradlyb View Post
                          I have a feeling that they wont be calling me any time soon.

                          I am a little confused by exactly how the following applies: .

                          Since I was never informed that I was terminated and was just taken off of the schedule when should I have received the pay check?

                          Is an employer, however briefly you are employed by them, required to let you know that you are terminated?

                          Also, this is slightly off topic but I am interested. I was required to purchase a uniform (black slacks, white shirts, tie, black shoes, all of which I did not own before being hired). The amount of time I worked there does not even cover my out of pocket costs. Is there any way to make them reimburse me?
                          You should have received your final pay the last day you worked. Yes, your employer is required to give you a notice of the change in employment status. (e.g. pink slip).

                          As for the uniform... Uniforms of specific design or color must be paid for by the employer. Your uniform does not sound like it is specific is design or color and could be worn while working at other restaurants, so your uniform does not sound like an expense your employer must pay for.

                          Originally posted by Pattymd View Post
                          My understanding is that being taken off the schedule does not invoke the "final pay" regulation. You should have received your pay for time worked on the normal pay schedule.
                          That is incorrect. An employer may not circumvent their obligation to pay final wages in accordance with LC 201 by simply never telling the employee they are terminated. Moreover, the labor commissioner has taken the position that an employee who is laid off (eg, taken off the schedule) without a specific date to return to work, within the same pay period, should be paid final wages in accordance with LC section 201.
                          "The most patriotic people in America are the working class" - Cecil Roberts - President UMWA

                          Comment


                          • #14
                            Thanks mcarson and everyone else for their help!

                            I will let you all how this goes.

                            Comment


                            • #15
                              From the CA-DLSE manual:

                              3.2.2 Layoff. If an employee is laid off without a specific return date within the normal pay period, the wages earned up to and including the lay off date are due and payable in accordance with Section 201. (Campos v. EDD (1982) 132 Cal.A pp.3d 961; 183 Cal.Rptr. 637; see also O.L . 1993.05.04 and O.L . 1996.05.30) If there is a return date within the pay period and the employee is scheduled to return to work, the wages may be paid at the next regular pay day.
                              3.1 Labor Code 201.
                              If an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately. An employer who lays off a group of employees by reason of the termination of seasonal employment in the curing, canning, or drying of any variety of perishable fruit, fish or vegetables, shall be deemed to have made immediate payment when the wages of said employees are paid within such reasonable time as may be necessary for computation and payment thereof; provided, however, that such reasonable time shall not exceed 72 hours, and further provided that payment shall be made by mail to any such employee who so requests and designates a mailing address therefor.
                              "Reality is that which, when you stop believing in it, doesn't go away".
                              Philip K. **** (1928-1982)

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