State Penalized for Failing to Timely Pay Final Wages

Prompt payment of final wages. It’s not just a good idea. It’s the law. The State of California apparently didn’t get the memo on that one. The California Supreme Court had to tell the state that retiring employees are entitled to their final wages on their last day of employment. Labor Code sections 202 and 203, requires employers to make prompt payment of the final wages owed to employees who quit. Failure to timely pay final wages allows a court to impose statutory penalties. In McLean v. State of California, a retired deputy attorney general, sued the State of California on behalf of herself and a class of former state employees who did not timely receive their final wages when they quit or retired.

The state argued that sections 202 and 203 do not apply when employees retire. It also argued that McClean should have sued the state agency for which she worked instead of the State. The court concluded that:

Labor Code sections 202 and 203 apply when employees retire from their employment. We also conclude that McLean‟s decision to name the State of California as a defendant rather than the Department of Justice is not a basis for dismissing her suit.

When Are Final Wages Due?

For most California employees, final wages are due immediately upon termination (Labor Code section 201). It does not matter whether the employee is fired or laid off. If the employer is the moving party (i.e., the one to end the relationship) then it is a termination.

In contrast, California employees who quit their employment without notice must be paid within 72 hours of his last day of work(Labor Code section 202). There is an exception when an employee provides at least 72-hours notice. In that case, the final wages are due on the last day of employment.

There are some slightly different rules for:

Penalties for Failing to Timely Pay Final Wages

Employers willfully failing to timely pay final wages pay a penalty. (California Labor Code section 203). And don’t forget that “wages” includes accrued vacation or PTO (but not paid sick leave in most cases).

This “waiting time” penalty is calculated by multiplying the employee’s daily wage by the number of days until the employee is paid. There is a 30-day maximum on the waiting time penalties, but the penalty is imposed every day–not just every working day. There are a lot of cases where the penalty exceeds the actual wages owed. The penalties are almost mandatory unless an employer can show a good faith dispute that the wages were owed.

As the State of California just learned, employees must promptly receive their final wages. Employers cannot hold the wages hostage pending return of the employer’s keys or other equipment. If you have questions about California wage and hour issues, call an experienced employment attorney.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

Is Your Workforce a Suicide Squad?

Ok. I admit it. I’m a fan of super-hero movies. When I found out DC’s Suicide Squad was opening on my daughter’s birthday it was a no brainer. So I loaded the family into the mini-van and took them to see it opening day. The basic plot consists of a team of dangerous, incarcerated super villains “recruited” for a top-secret mission.

Amanda Waller, the U.S. intelligence officer who assembles the team, specializes in getting people to do what she wants. She has one character’s heart locked in a box. She motivates another character by promising he can spend time with his family. The idea is that each member of the team has separate motivations. Waller uses–OK, exploits–those motivations toward a common goal.

Suicide Squad in Your Workplace?

As a movie, Suicide Squad did not disappoint. As an employment attorney, it got me thinking. I’m not suggesting employers run out and hire dangerous super villains. If we put aside Waller’s I-don’t-care-who-gets-killed mentality, and the hundreds of zombie-like bad guys put down by rapid machine-gun fire, there may be a few lessons for life and the workplace.

  1. A properly motivated team can overcome extreme obstacles.
  2. You can’t properly motivate someone unless you know what makes them tick.
  3. Although others can motivate us, we work better when we motivate ourselves.
  4. Working as a team is almost always better than working alone (except when it’s not).
  5. When management warns you of the consequences should you fail to follow directions, you’d better follow directions (Alas, poor Slipknot, we knew thee little).
  6. Failure is always an option, but we probably won’t like the results.
  7. A carrot is usually a better motivator than a stick.

Workplace Fairness

I frequently advise employee clients that employers are not required to treat employees fairly. I also advise my employer clients that treating employees fairly is the best way to avoid problems (including legal problems) in the workplace. Consider your work environment.  Whether you’re an employee or an employer, are you motivating your colleagues and yourself toward success? Are you treating others the way you want to be treated? Do you have a killer crocodile living in your sewer? If you answered yes to at least two of those questions, you probably have a stable workforce that is building toward success. If not, then think about what you can change to improve your workplace

I’m hoping to see Jason Bourne soon.  We’ll just have to wait and see if I can any more bright ideas about the workplace.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

A Day in the Life of Employment Lawyers

On August 9th, at 6:00 p.m., I and some of my colleagues will be doing a presentation for the Alameda County Bar Association.  The presentation is part of the ACBA’s Intro to Practice Area Series.  Our presentation is: A Day in the Life of Employment Lawyers, and it will be held at the ACBA office in Oakland. The goal is to offer insights for new attorneys or attorneys thinking about practicing employment law regarding what employment lawyers do and what an average day looks like.

Employment Lawyers

My co-presenters hail from a wide range of practices, from small plaintiffs firms to large defense firms and even an in-house counsel. It should be a great opportunity to learn more about employment law. The following is a list of the presenters:

Jamie Rudman of Sanchez & Amador, LLP

Jamie Rudman is a Partner at Sanchez & Amador, LLP, a minority-owned business law firm in Oakland and Los Angeles. Jamie co-chairs the Employment Litigation Team. She has over twenty years of experience representing employers in employment litigation throughout California, primarily in the financial services, tech and retail sectors, and she counsels Fortune 500 companies on sensitive employment matters. Jamie is the 2016 Vice-Chair of the ACBA Labor and Employment Executive Committee.

Sonya L. Smallets of Minnis & Smallets

Sonya Smallets is a partner at Minnis & Smallets, has been representing employees who have been discriminated, harassed, wrongfully terminated, or denied reasonable accommodations by their employers for more than ten years. Sonya is the Secretary of the ACBA Labor and Employment Executive Committee. Sonya graduated with honors from Berkeley Law. She then clerked for Judge Sidney Thomas of the Ninth Circuit Court of Appeals and Judge Claudia Wilken of the Northern District of California before working for Lawless & Lawless as an associate attorney.

Krista Stevenson Johnson of Sheppard Mullin Richter & Hampton LLP

Krista Stevenson Johnson is a Special Counsel at Sheppard Mullin Richter & Hampton LLP in its San Francisco office. Krista advises and represents management clients in employment and labor litigation, focusing on employment class actions and harassment and wrongful termination lawsuits. In addition, Krista uses her extensive knowledge of and experience in employment and labor laws to provide practical and effective advice to management regarding employment law compliance, wage and hour laws, and workplace investigations.

Karla Franklin of Gap Inc.

Karla Franklin is Senior Counsel in the Global Employment Law Group at Gap Inc., an American worldwide clothing and accessories retailer that operates five distinct retail brands (Gap, Old Navy, Banana Republic, Athleta and Intermix). Ms. Franklin has been with Gap Inc. for over ten years and during that time has lead the company’s defense against a variety of wage and hour class actions. She currently leads the Company’s Wage and Hour compliance efforts. Prior to joining Gap Inc., Ms. Franklin spent approximately ten years as a defense side employment lawyer (working in both large and small firms). Ms. Franklin earned her J.D. from the University of California, Hastings College of the Law.

Robert Nuddleman of Nuddleman Law Firm, PC

Robert Nuddleman began representing employers and employees as a certified law student, and completed his first wage and hour trial before he graduated law school. A significant focus of Robert’s practice relates to wage and hour claims, including unpaid overtime, minimum wages, commissions and bonuses. Robert also represents individuals and companies in claims of sex, race, age, and pregnancy discrimination and/or harassment, and he assists employers and employees regarding how to accommodate persons with disabilities. A particular focus of Robert’s practice includes advising trustees, conservators, families, care agencies, residential care facilities, care homes and others regarding wage and hour and employment laws in the elder care industry. The 2016 Chair of the ACBA Labor and Employment Executive Committee, Robert frequently presents seminars and workshops.

If you haven’t registered yet, you can do so here. Even if you are not an ACBA member, come join us. Hope to see you there.

 

New Employment Laws in California

As usual, the California legislature has been busy this year.  Recently, Governor Brown signed several new employment laws in California.  The following is a brief summary of the new employment laws.  More will certainly follow.

New Employment Laws in California

Wage Payments for Security Guards

Employers must pay most employees at least twice a month (semi-monthly). Employers can choose to pay employees every two weeks (bi-weekly) or even weekly. Under Labor Code Section 201.3, temporary service employers are required to pay employees weekly.  On July 26, 2016, Governor Brown signed AB 1311 expanding Labor Code section 203.1 to apply to certain security guards .

This new law took effect immediately upon enactment as an urgency statute.

Civil actions for Human Trafficking

Victims of human trafficking can bring a civil action for damages and other appropriate relief.

AB 1684 allows the DFEH to investigate, mediate, and prosecute human trafficking complaints. The DFEH can also recover damages for the victims of human trafficking.

This new employment law goes into effect January 1, 2017.

Work Experience Education and Job Shadowing

16-years old students can receive credit for completing a work experience education program. Students can “job shadow” for a maximum of 25 hours in a specified period.

AB 2063 expands the job shadowing to 14-year olds with the school principal’s certification.  AB 2063 also increases the hours to 40 hours in a specified period with the principal’s certification.

This new employment law goes into effect January 1, 2017

Wages: Itemized Statements

Employers must provide accurate itemized statements to employees containing specified information. The wage statements must show the total hours worked. Salaried employees exempt from California’s overtime requirements do not have to have their total hours on the pay stubs.

AB 2535 adds computer software workers, outside salespeople and certain family members to the list of employees who do not have receive pay stubs showing the total hours worked.

Workers’ Compensation Independent Medical Reviews

Under California’s workers’ compensation system, if a treatment or diagnostic service remains disputed after a 3rd physician’s opinion, the injured employee can request an independent medical review. Existing law requires the review to use standards established in statute or use the American College of Occupational and Environmental Medicine’s Occupational Medicine Practice Guidelines.

SB 914 deletes the authorization to use the American College of Occupational and Environmental Medicine’s Occupational Medicine Practice Guidelines as standards for those independent medical reviews.

Deaf or Hard-of-Hearing Individuals

Several statutes use the term “hearing impaired,” or a close variation of that term. AB 1709 replace the term “hearing impaired” with the term “hard of hearing,” or a close variation of “hard of hearing,” and makes other technical, nonsubstantive changes in those provisions.

Wage Investigations and Subpoenas

Existing law authorizes the Labor Commissioner to subpoena witnesses and documents. If a person fails to comply with a subpoena the superior court can compel the witness to testify or for the production of documents.

SB 1342 allows cities and counties to delegate that body’s authority to issue subpoenas and to report noncompliance to a judge for enforcement.

These are just some of the new employment laws the California legislature has and will adopt for 2016. This is a good time to review your policies and procedures.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Use of this website for communication does not establish an attorney-client relationship. Do not send confidential or time-sensitive information via this website. Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.