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Waiting Time Penalty California

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  • Waiting Time Penalty California

    I recently filed a wage claim against a former employer after he refused and then delayed my final paycheck. I would appreciate an outside perspective on my situation as there are some things I have questions on.

    On 7/20/12 I gave my former employer and supervisors 2 weeks notice in the form of an email, stating that my final day would be August 3rd. Although they were not happy about my departure, it went amicably for the next 2 weeks.

    On 8/3/12, I had wrapped up my duties, finished whatever projects I had, and asked the owner if there wasn't anything else he'd like me to do, if it was okay to leave a little early, since at that point I was just watching the clock wind down. He said sure, so I left.

    The next week I emailed the owner's partner and co-founder, asking to be reimbursed for past due travel expenses as well as the pay check covering my last 3 days. I figured those payments would be paid at the end of the pay period. We arranged to have lunch the following week and he would bring those checks and we would discuss me helping them with certain duties as a freelance contractor, something we discussed during my last days there.

    On 8/15/12 I met with the co-founder for lunch. He had my expense reimbursement but didn't have the check. He told me that his partner didn't write me my final paycheck and that he was scrutinizing my last three days of working. We wrapped up lunch with me going over a freelance contract to help them out in those coming weeks after my departure from full time work.

    When I got home, I emailed his partner, the owner of the company and assured him that I worked those 3 days (8/1-8/3) just like all the other days I worked, and reminded him about our conversation as I left on 8/3. He quickly replied back that he told his partner prior to our lunch meeting that if I pushed them on those 3 days they would never work with me again and that he wouldn't even consider the contract I proposed to his partner. That was fine by me if we never worked again after he said those things. He demanded I pick up the paycheck at that moment (it was evening already). I wasn't about to go over to the office that late, with him irate, and just him and I there. I asked him to just mail it to which he agreed.

    After waiting about 4-5 days of not receiving the check by mail, I filed a wage claim for those last 3 days. On 8/30 I made plans with a former coworker still working there to get together. During the phone calls leading up to it, I discovered from him that my check had been sitting at the office, unmailed for weeks. I asked him to just bring it to me when we met up later that evening. When I got it, there was no postmark, no pay stub showing the tax witholdings, calculations, or breakdowns of the check. By my calculations, it was also short. I deposited the check the following day.

    Less than a month after, both my previous employer and myself received the Notice of Claim and Conference. He emailed me, saying he mailed the check, he didn't know why I made the claim, accused me of not depositing it or holding it on purpose, even though I have evidence and witnesses showing it sat in the office for weeks after he told me he would mail it. I tried to explain the sequence of events to him and why this claim was made, but there was no reasoning with him at this point. At this point he was telling me it was time for me to "lawyer up."

    He maintains that he thinks I either wasn't there those last three days or didn't work, thereby justifying him not paying me. Even though we were in the same building those three days, discussing things like the work contract after my last day. He was fully aware that I was there wrapping things up for my departure, but now conveniently doesn't recall me being there.

    Although we had a verbal agreement that I get paid a set amount per pay period (all my pay stubs reflect this) he alleges that because I didn't use the time clock, he can dispute those wages. Due to the nature of my work, being in and out of the office for work errands and working varying hours, I was never required to use the time clock and I was always paid the same amount every 2 weeks.

    My questions are:

    Is his time clock dispute a legitimate good faith dispute? I have a stack of paystubs from the past two years showing Salary and not an Hourly rate. All the same amount and none indicating my pay was based on time clock hours during that pay period. I've never been required to use the timeclock. He said he would use my timecards or lack thereof against me even though prior to this, I was never required to clock in or out.

    Do his actions exhibit him willfully withholding my final paycheck? I feel almost like he was holding those 3 days pay as leverage to negotiate my that freelance contract (which we were negotiating at the office during my final days). I also think he wrote the check and left it in the office so it wouldn't get mailed out and so he could claim he tried to mail it out. Also, at the start of this he warned against me "pushing him" for those 3 days.

    Also, do you think I should get a lawyer? I have ample evidence both in emails, text messages, pay stubs supporting my claim.


    Thanks for taking the time to read my story. Any other advise would be much appreciated!

  • #2
    Perhaps you are over thinking this.
    - A CA-DLSE wage claim leads to a hearing. You tell your story. The employer tells their story. The two stories almost never agree with each other. The hearing officer gets to decide whose story they like.
    - Time clocks are part of the employers story. You will claim that the time clock is wrong. The employer will claim that the time clock is correct. The hearing officer gets to decide whose story they like.
    - You can ask for a waiting time penalty. The employer can give their opinion on why the waiting time penalty is not due. The hearing officer gets to decide whose story they like. HOWEVER, CA-DLSE is very clear that legally whether or not to give a waiting time penalty is 100% CA-DLSE's decsion. There is no "right" to the waiting time penalty. CA-DLSE can choose to impose one. Certainly ask for it, but there are no sure things here.
    - Frequently in these hearings less is more. The HO is a busy person and the person who brasses them off the least generally wins. Tell a short simple story. It is ok to submit documents but have a simple one page summary and expect that will be the only document that the HO actually looks at. Do not interrupt the HO for any reason. Do not repeat yourself. Assume that they heard you the first time. Address all comments to the HO. Assume that they do not need or want you to tell them what their job is.
    - What you just posted is WAY to long to orrate to the HO. Your entire story seems to be that you were underpaid 3 days and the employer failed to pay you in a timely manner. Anything you say had better be making and supporting those two points simply and quickly. Every additional word reduces your chances of winning. The same is true for the employer. Those are the two points they need to defend.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

    Comment


    • #3
      Thanks for the reply and for the advice.

      I figured I might be over-thinking it and were including too many nuances to the situation than are needed for them to understand the facts.

      Comment


      • #4
        update

        I just wanted to post an update and follow up on my original post in case there are others out there who are in a similar situation.

        About a month ago I had a hearing with the DLSE regarding my complaint. Before the hearing took place, the hearing officer explained a few things and gave both parties some private time to discuss a possible settlement. The hearing officer left the room and immediately my former employer starts warning me not to do this "or else." Said employer remarks that he will take me to court on some other trumped up, unrelated charges and this will get very expensive for me if I don't drop it. I mention this, not out of spite (I feel embarrassed for him making such an impotent threat) but just to stress the fact that some employers will say anything to you and lie to others, including the hearing officer, which he does later. So don't freak out or get heated as it won't help. It's better to just expect it and accept it for what it is when it happens.

        We move forward with the hearing at which point I give a brief summary of the complaint along with evidence I have brought. Keep it as simple as possible and keep in mind that everything is being recorded. Make sure to bring enough copies of docs for everyone at the hearing, a minimum of three. My former employer failed to bring any copies besides his own and ended up getting stern looks and admonishment from the hearing officer. It did not help with any of the facts he brought up and made him look unprepared. Don't be that person. Funny aside, he brought a CD of on-site footage of me at/not at work, but failed to bring any device to play it back on. It was not submitted into evidence.

        I was thorough as I could with records and I should note, I only gave records or evidence when the hearing officer requested them as he asked questions. I ended up bringing old pay stubs, old w2s, business cards, etc. and was told by the hearing officer he would not need them as my employment was not in question or dubious. Makes sense. You can always request to submit something into evidence, but make sure it's absolutely necessary for your case. The officer will be taking notes and entering evidence that corresponds with those notes. I ended up not submitting a lot of what I brought, but the most important and vital to the case stuff made it into evidence.

        After I told my story and submitted some documentation to evidence, the hearing officer asked questions to clear certain things up and from time to time. He then switched the line of questioning to my former employer and accepted any evidence. The hearing officer's job is to get as clear and accurate story of the complaint, so keep it on the facts and have those facts be backed up by evidence. Getting heated, flustered or making claims that can't be proved doesn't make the officer's job any easier.

        At some point, I was allowed to ask the defendant questions and then he, in turn, asked questions of me. Ask and answer the questions as objectively as possible and don't interrupt anyone. Give the other party a chance and give the hearing officer the opportunity to glean some clarity from the exchanges. Don't form your question in the form of a statement to berate the other party. My former employer did so and was sternly warned. He was very unprepared. I prepared my questions ahead of time and also thought about what questions he might ask me. I'd recommend doing so, because if you're thinking of questions/answers on the fly, you're more likely to get emotional or sound vindictive when you first hear them. I'll admit, the one question I asked that was unplanned in the heat of the moment came across as argumentative and vindictive, so plan ahead if you can so you know what to expect. That way you don't overreact to anything.

        Once the hearing officer felt he had heard enough and would be able to write out a judgement, he asked if there was any last things we wanted on the record. I had to bite my tongue.

        After about 15-17 days, I received the judgement in the mail, along with a description and explanation of the judgement. The key parts in my case were that he willfully did not pay me my last paycheck, did not give me a paystub when I requested one, and even when he finally paid, it was the incorrect amount, resulting in the full 30 day waiting time penalty, balance, plus other penalties. Basically, for the last three days, my employer decided he was going to pay me like a non-exempt employee based on my time cards and what he calculated was my hourly rate. Since I was salary, I never used the time clock, so he tried saying I wasn't there a full 8 hours a day. Because of my position and because I was an exempt employee, any amount of work done on a given day, whether it's 1 hour or 24 hours, is paid based on my salary. I'll update this later to reflect the exact language used by the hearing officer and the FLSA.

        As of right now I'm working on collecting the ODA amount, which I will also share. I hope my experiences give others insight into how to prepare for their own hearings and what to expect.
        Last edited by ecdoesit; 04-10-2013, 01:04 AM.

        Comment


        • #5
          I should also note DAW's advice was SPOT ON, so read what he has to say, as I took that advice seriously and it helped me out. Thanks again DAW!

          Comment


          • #6
            Thanks for the update. Glad it worked out for you.

            Comment


            • #7
              Agree, thanks for the update - we always like to read them especially when they are good news.
              Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

              Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

              Comment


              • #8
                If he doesn't pay in a reasonable amount of time, you can go to court to schedule a 'Judgment Debtor's Examination', where he has to meet with you in court, and answer a list of questions you ask. You can also take any cash he has on him, and valuables like an expensive watch, from what I remember. Here's a link to Sacramento County's procedure: http://www.saccourt.ca.gov/civil/ord...amination.aspx, for more explanation. You'll have to check out your county's procedures and forms to do this.

                BTW, was the judgment on him personally, or the company (is it incorporated?) or both? If it's the company and not him personally, you don't get to take the cash or watch, sorry.

                If he refuses to answer the questions you're allowed to ask, you go to the bailif and he/she will order him to answer in front of the judge.

                Once you have the info, you can garnish his bank account, etc. Nolo press probably has some good info on collecting on a judgment, www.nolo.com.


                Any costs to collect (service of process, garnish order, etc. are added onto the total judgment amount you can collect.
                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

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