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unpaid wages with change in salary California

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  • unpaid wages with change in salary California

    I recently got promoted as of Dec. 1, 2010 and I was suppose to be switch from hourly to salary with a increase in my pay beginning Dec. 1, 2010. My supervisor filled out a form for HR to change my position and salary and we are still awaiting for upper management signatures.

    They say that once it's been approved then they will retroactive the unpaid wages. Is this legal? If it is not legal does the employer owe me more money than just the unpaid wages?

    I am also very concern that my W-2 will not reflect the correct earnings that was earned for 2010 because I haven't been paid for the difference in pay.

    What labor laws are being violated? If labor law 204 and 204b is violated is this a misdemeanor on the company? Please advise.

  • #2
    Yes, it's legal and not all that uncommon. Is there any reason you think the employer is not going to follow through and pay the back wages? And no, there is no additional payment due (like interest, if that's what you were thinking) for the retroactive wages.

    If the retro payment wasn't paid in 2010, it doesn't go on the 2010 W-2. Wages are reported on a cash basis for W-2 purposes.
    I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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    • #3
      If it is legal, how long can they drag the process? Is there any statue of limitation for this?

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      • #4
        None whatsoever. As far as the law is concerned, if they give you retro pay at all they're doing more than the law requires. All the law cares about is that if non-exempt,you get the higher of state or Federal minimum wage, if different, and overtime at the rate of time and a half if you work more that 40 hours in a week (or 8 in a day since you are in CA; if exempt you get a minimum of $455 per week ($640 a week since you are in CA).

        Neither CA nor Federal law requires that you ever receive a raise unless minimum wage (or the floor for exempt salary) is raised by the appropriate legislative body and you are earning less than the new minimum. Nor is a raise ever required to be retroactive except in the same situation.
        The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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        • #5
          Agreed with the above. Lets change the facts a little and say that you have a legally binding contract that your employer must give you a raise on a certain date. Based on that you file a wage claim. CA allows for a penalty but you do not get it. It goes to CA. That is CLC 225.5. The only late payment penalties that go to the employee are for termination wages.

          You can claim that something your supervisor said is a "legally binding contract" but CA-DLSE (and the courts) will not agree with you on that point. Absent something a court considers a legally binding contract, you are in common law territory, what the other answers describe. Absent the legally binding contract, there are no "legally due wages" to base any penalties on.

          I understand that this is not the answer you are looking for. But feel free to file a wage claim if you disagree.

          225.5. In addition to, and entirely independent and apart from, any other penalty provided in this article, every person who unlawfully withholds wages due any employee in violation of Section 212, 216, 221, 222, or 223 shall be subject to a civil penalty as follows:
          (a) For any initial violation, one hundred dollars ($100) for each failure to pay each employee.
          (b) For each subsequent violation, or any willful or intentional violation, two hundred dollars ($200) for each failure to pay each employee, plus 25 percent of the amount unlawfully withheld.
          The penalty shall be recovered by the Labor Commissioner as part of a hearing held to recover unpaid wages and penalties or in an independent civil action. The action shall be brought in the name of the people of the State of California and the Labor Commissioner and attorneys thereof may proceed and act for and on behalf of the people in bringing the action. Twelve and one-half percent of the penalty recovered shall be paid into a fund within the Labor and Workforce Development Agency dedicated to educating employers about state labor laws, and the remainder shall be paid into the State Treasury to the credit of the General Fund.
          "Reality is that which, when you stop believing in it, doesn't go away".
          Philip K. **** (1928-1982)

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