Employment Law: Not Getting Paid For Work Completed?
Employment Law: Not Getting Paid For Work Completed?If your employer has fired you or isn’t paying you more than two weeks after you havecompleted your work, there are several options available to collect monies due you saysemployment attorney San Diego. Today’s blog will briefly discuss several suchmethods. In unusual circumstances, there are also other avenues to assure payment ofmonies due. Also, claims for future lost wages or even wages not earned aftera wrongful termination or forced resignation should be collected through a lawsuit inSuperior Court if a voluntary agreement is not reached with the employer.Also, using one of these methods “may” result in the denial of the right to later file aclaim in court against your California employer. This is because a loss at a lower levelmight be considered binding in the Superior Courts. That said, let’s get on with it! Saysemployment attorney Fresno.1) Small claims court is available for claims up to $7,500. The process is easy, filing feeis low, and attorneys are not allowed. That means you are going to appear in court, onyour own, on an equal footing with your employer’s representative. Bring with you allevidence and witnesses that you believe can help win your case. If you are owed morethan $7,500 (say in back wages) you must give up or waive any amount above thatsum. Higher limits apply to car cases. If you lose, you as the plaintiff may not appeal.2) Department of Labor Standards Enforcement (DLSE). This is probably the best placeto go for a simple failure to pay wages, loss of meal or rest breaks, or statutory waitingtime penalties. Under the Labor Code, your employer must give you the right to take a30 minute meal break every 5 hours and two ten minute rest breaks, spaced as close aspracticable to the middle of each of your four hour work shifts pre and post meal. TheDLSE will also make sure that you receive “waiting time” penalties of up to 30 days at
your average days’ pay if you are not paid on your final day of work if you are fired, orwithin 72 hours if you quit. You can’t make yourself intentionally unavailable to get yourfinal pay in order to increase your waiting time penalties. In a recent truck driving casein the oil-fields, it was clear that the company was “pretending” that oil field workerswere actually “drivers”, not entitled to overtime. This is the type of case the DLSE caneasily hear. When your complaints, however, that you are “misclassified”” get you firedor disciplined, then legal representation is a must.3) Union proceedings. Many union agreements (“Collective Bargaining Agreements” or“Memorandum of Understandings” in public employment cases, provide for a uniongrievance regarding pay issues. However, in our experience, you are usually allowed toalso take those issues to the DLSE.4) Limited Court jurisdiction. For disputes up to $25,000, California has a system oflimited jurisdiction courts. Proceedings are simpler, discovery is briefer, and amountsare limited.5) Superior Court in your county is the granddaddy of all proceedings and provides theemployee with a jury to hear the case. Due to reductions in court funding, jury trials arenow being pushed back in time, to at least a year to two after the case is filed. Due tothe high cost and long wait, such cases are best reserved for serious disputes overmore than just money due for work completed. For example, our office representshundreds of employees state-wide in court each year for wrongful termination, sexual,race, age and physical’mental condition disability. You are entitled to do full discoveryon your case, including depositions of witnesses, examination of evidence thecorporation has in its files, calling of expert witnesses and the like. Most attorneys whopractice employment litigation will take your case on a contingency and advance allcosts needed to successfully prosecute the case. As a rule of thumb, we’ve found thatabout 10% of the settlement usually covers costs of court reporters, subpoenas, juryfees and the like.6) Arbitration. Many (especially large) employers insist that potential employees signagreements to arbitrate their disputes. While employers tout these as more efficient andquicker than court, we have found, as exclusive advocates for employees, that this isnot usually the case. It can take many months of wrangling just to decide on the oneperson who will be your judge and jury all wrapped into one. Employers will rarely sit byif a large judgment is awarded against them in arbitration and will bring motions tochallenge the award. We have found that we “win” as much at arbitration as in any otherforum such as court, but the possibilities of a “run away” verdict or even a large
recovery (say above 1,000,000) is rare. Why is that? Mainly, arbitrators know that if theyaward a plaintiff a large amount, the corporations will never use them again. Thishappened recently to an arbitrator in Los Angeles, who was forced to retire fromarbitration and just do mediation.7) Private mediation. Many large employers will illegally (in my opinion) “tie” your right todemand arbitration under the employee handbook with a demand that you first mediateyour concern. This makes perfect sense if your amount at stake is modest. In a recentcase, an employee was asked to work off-site where no time records were readilyavailable and a dispute arose over the hours and expenses incurred by theemployee. (Side note: Under California Labor Code 2802 you are entitled to allexpenses necessarily incurred in doing your job. Keep track of hotels, gas receipt’s andthe like. Most employers now pay about.50/mile for use of your own car). A privatemediation can result in you receiving all of your wages rather quickly and at low to nocost to you. Some companies maintain an “ombudsman” to invetigate employeecomplaints. See if your Human Resources Department has such an office. These weremore popular about ten years ago but there may be a conciliator under some othername in your HR department.Some employers will ask you to sign a release of wage claims in return for receivingwages due for work already done. This is illegal under the Labor Code. You are entitledto your pay without releasing all of your rights. In many cases, what started as a simpledispute over wages (say incorrect classification or failure to pay overtime) escalates intoa fear by the company that many others, similarly-situated, will bring claims. You maybe asked to agree not to represent other employees and “waive” your right to be a classrepresentative. Be sure to check with an attorney to make sure that’s in your bestinterest. As always, this blog is not legal advise, but educational in nature. Seek aqualified attorney in your jurisdiction who can advise you on the best course of actionwith regard to your specific facts.employment attorney San Diego., employment attorney Fresno.