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CA-Didn't get final paycheck by mail for 30 days & still losing!!!

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  • CA-Didn't get final paycheck by mail for 30 days & still losing!!!

    I've been pursuing a claim for some terminal vacation pay and the waiting time penaly but I'm having trouble and need help!

    I'm going down in flames on whether my employer's conduct was "willful" in terms of section 203 (Title 8, sec 13520) and whether simply putting a check in the mail is enough to discharge an employer's obligation to pay. The employer and factfinder are taking the attitude that since the employer claims they put the check in the mail it's not their fault I didn't get it. Does anyone have any compelling arguments I can use when I go before the small claims court judge on Monday (and it has to be wicked concise since the judge will probably only give me seconds to make my argument!).

    Thanks in advance. Here's a little more background in case that helps:

    On my last day of employment, I had left and was on the road to my new home when I got a voice mail message from my supervisor telling me my check was ready to pick up. I was given no prior notice that it would be available that day until this call in the evening, after working hours. So I called back and left a message saying go ahead and mail it then. I followed up with an e-mail. Long and short the check never arrives. I go through about 3 weeks of the "the check is in the mail" from my supervisor and even have my former supervisor promise to send me a replacement. Then my employer insists that I fill out and send them a form for stop payment before they will issue a replacement. After I do that I finally get my check and it's short! Grrrr!

    Now everyone is in agreement that I did not receive any of the pay until 31 days later (30 if you go by date of mailing. . .) but everyone else is taking the attitude that just putting the check in the mail is ok. . .

    CA Labor code section 202 & the DLSE interpretation manual state that if the check is mailed it has to be requested by the employee and that it has to be received. My employer has offered no proof of mailing (and I'm inclined to argue that I didn't really request mailing, that I only agreeded to it because I had no other option). Other references I've looked at suggest that just mailing is not a sufficient standard. Also, my employer's policies specifically state that they use certified mail or some other verifiable option.

    Any help to convince the judge that just popping the check in the mail isn't enough would be appreciated!

  • #2
    California requires that an employee's final check, including hours worked and any accrued vacation or PTO depending on how your employers provides it, be ready on your last day of employment. The employer does not have to give it to you until the end of your shift. If you left work early, you resinged without notice and the employer then has 3 days to get the check to you. Since you told the employer to mail it, you agreed to the mailing whether it was your only option or not. You could have turned around and gone back for it. You do have a right to collect the full amount that is owed to you and should pursue that. I doubt that you will get anywhere claiming that you did not agree to mailing because the employer will present the e-mail. Did you keep the envelope that your check was mailed in? That is your proof when the check was mailed after the 3 day period.

    Since you left work early, the employer can claim that you left without notice and that voids the necessity to have the check available on your last day. I had an incident where the employee left early and then tried to claim additional pay for the check not being given on the last day. The hearing judge ruled that when the employee left early, that constituted resigning wthout notice because the employee did not work his full shift.

    Getting thru the complaint process is long and frustrating but they do get there eventually.

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    • #3
      Thanks for the response. I can see how I'm stuck about accepting the mailing but to clarify, the notice about the check came well after working hours (almost 6pm) and so turning around would have required driving almost another hour in the other direction and there was no guarantee that anyone would still be there to give me my check (since my notice was a voice mail message and not a conversation.) To complicate issues I worked at a different site from my supervisor so it's not like we were in the same building or something (our offices were about 10 miles apart). So it wasn't so much a case of leaving early and they didn't have a chance to hand it to me but I can see how arguing I didn't really agree won't hold much weight.

      The biggest issue for me really, is establishing whether just placing the check in the mail is enough and when it got lost is it reasonable for the employer to delay weeks in sending a replacement and only doing so after they make me fill out a form?

      I'm thinking that if I sent a check to my credit card company or landlord that got lost in the mail it wouldn't go over very well if I tried to force them to fill out a form before I would cancel the check and issue a new one so why would it be different for a former employer who owes money.

      Yes, I do have the Fedex envelope for the replacement check they finally sent me and a copy of that check. I would have thought that the waiting time penalty would be pretty straight forward since the employer isn't disputing the timeline but they are arguing that because they dropped the check in the mail they are not liable for any penalties. I'm arguing that it is the delivery of the check that matters particularly since they don't seem to have any proof of mailing. As far as I know it's just as likely my former supervisor lost the check as put it in the mail. But I'm a little frustrated that making excuses for the check not arriving seems to be getting more traction than the employer having a responsibility to deliver it. Lots of people must hate the post office! ;-)
      Last edited by tocs; 03-09-2007, 10:40 AM.

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      • #4
        Once the employer puts the check in the mail, their obligation is fulfilled. However, once they are notified that you have not received the check in a reasonable time, they are obligated to replace it. To my knowledge there are not time limits put on the replacement. They can request that you sign a form stating that you will return the money should you receive the first check. You do not have to sign it to get your check. The fact that you worked your full shift makes the employer liable because they did not get you the check before you left. Unfortunately, the complaint process will take a long time but it will get done eventually. I believe they are backed up about a year.

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        • #5
          Thanks again. I'll just have to see how things play out and hope for the best.

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