Can I sue my employer for unpaid wages?
Wages include but are not limited to contract wages, hourly wages, salary, vacation, overtime pay, commissions, and stock options. If you are an hourly employee and denied meal and rest breaks, you may also be entitled to additional compensation for missed meal and break periods. The extent of your rights to wages depends on whether you are classified as an “employee” or an “independent contractor.” Your entitlement to wages may also be governed by a written contract.
Many individuals who perform as full-time employees are deliberately misclassified as independent contractors and thereby wrongfully exempted from overtime pay and other benefits. There are many types of other unfair compensation practices. The following is a general overview of your rights to payment of wages under California law and is not intended to serve as a substitute for legal advice.
Hourly employees must be paid twice a month as follows:
- wages earned between the 1st and 15th of the month must be paid between the 16th and 26th;
- wages earned between the 16th and the end of the month must be paid between the 1st and 10th of the following month. Labor Code § 204
Salaried employees: May be paid once a month rather than semimonthly. The full month’s salary, however, must be paid on or before the 26th day of the month during which labor was performed; i.e., the entire month’s salary—including the unearned portion between the date of payment and the last day of the month—must be paid at that time. Labor Code § 204.2.
Simply because an employer pays you a salary instead of an hourly wage may not preclude you from collecting overtime pay. Only employees who fall into administrative, executive, and professional exemptions are barred from overtime pay. Whether you are excluded under any of these exemptions is a fact intensive analysis that focuses on your actual job duties. For example, some employees in the field of Human Resources are entitled to overtime pay and others are not. If you suspect that you have been wrongfully classified as non-exempt, you should contact an attorney for a professional opinion.
Commissioned employees of motor vehicle dealers: Employees of motor vehicle dealers paid commissions must receive their commissions once each calendar month on a day designated in advance as the regular payday. Labor Code § 204.1
Payment of wages is due immediately upon termination: An employer who fires an employee must immediately pay all compensation due and owing. Labor Code § 201(a). “Termination” includes not only involuntary termination from an ongoing employment relationship but also release of an employee upon completion of a specified job assignment or time duration for which the employee was hired. When the employee resigns, the employer must pay all compensation due and owing within 72 hours of resignation, or on the employee’s last day of work, if the employee gives more than 72 hours’ notice of resignation. Labor Code § 202
Vacation pay: Vacation pay is treated the same as all other forms of compensation at termination; i.e., accrued vacation pay must be paid to the employee immediately upon an employer-initiated termination and within 72 hours of an employee’s resignation. Labor Code §§ 201-202
“Use it or lose it” vacation pay policies are illegal: The employer must compensate the employee for unused vested vacation time: “(A)n employment contract or employer shall not provide for forfeiture of vested vacation time upon termination.” Labor Code § 227.3
Penalty for delay: If an employer willfully fails to pay wages due to an employee who quits or is terminated, the employee’s wages continue as a penalty until paid, for up to 30 days.
You may also be entitled to interest on unpaid wages, attorney’s fees, and costs of pursuing a lawsuit.
California law makes it unlawful for an employer to retaliate against you: While it is often intimidating to ask for unpaid wages, if you remain silent you may never get paid at all. If an employer retaliates against you for exercising your rights, you may have an additional claim for whistleblower retaliation.
We represent employees in wage and hour disputes concerning the following:
- Employer’s failure to compensate for denied meal and rest breaks
- Employer’s failure to provide accurate wage statements
- Employer’s failure to timely pay wages, including overtime pay
- Unpaid sales commissions
- Employer’s failure to reimburse employees for work related expenses
- Retaliation for complaining and/or asking for unpaid wages
If your employer is in breach of an agreement or you are owed unpaid wages, we urge you to contact an employment law attorney. California requires you to act quickly by imposing strict deadlines for pursuing an action for relief. Failure to abide by these deadlines will result in forfeiture of viable claims.