FAILURE TO PROMPTLY PAY WAGES WHEN AN EMPLOYEE IS DISCHARGED OR QUITS CAN BE VERY COSTLY

Employers and employees should all be aware of the severe penalties which can be imposed for the employer’s failure to promptly pay all wages due when an employee is discharged or quits.  The following are the general rules under California law governing such payments (some exceptions exist).

Any wages earned by an employee but unpaid at the time the employee is discharged are due and payable immediately upon discharge.  Labor Code § 201.  Where an employee voluntarily quits, his or her earned wages must be paid on the last day of work, unless the employee has given less than 72 hours’ notice, in which case any unpaid wages must be paid within 72 hours of the employee’s last day of work.  Labor Code § 202(a).

Failure to promptly make final wage payments can result in what are called “waiting time penalties.”  If an employer “willfully” fails to pay wages when due to an employee who is discharged or quits, the employee’s wages continue at the same rate until paid or until suit is filed, but not for more than 30 days.  Labor Code § 203.  This also applies where the employer fails to pay overtime wages due.

“Willful” failure to pay occurs “when an employer intentionally fails to pay wages to an employee when those wages are due.”   8 Cal. Code Reg. § 13520.  Generally, an intentional failure does not mean that the employer must be acting in bad faith or have an ill motive, but simply that the employer failed (or refused) to perform an act which it was required to perform.  However, “a good faith dispute that any wages are due will preclude imposition of waiting time penalties.”  8 Cal. Code Reg. § 13520.

Significantly, Labor Code section 203 penalties are daily penalties (up to the maximum of 30 days).  In other words, the penalty days are not calculated based on how many days the employee generally worked during a 30-day period.  So, for example, if an employee earning $10 an hour is not paid all wages due until, say, 31 days after discharge, that employee can recover $80 as a daily penalty for 30 days, or $2,400!  The calculations can become more complicated where commissions, bonuses, or piece-rate compensation are added in, but you get the idea – it’s a lot of money.

In my practice (Website; Email) I have dealt with these issues repeatedly, and it never ceases to amaze me how many employers fail to comply with the duty to promptly pay all wages when their employees quit or are discharged.

If you’re an employer, pay all wages due promptly when an employee is discharged or quits.  And if you’re an employee, and you believe you have not been paid all wages due, you may be owed more than you think.

CONSIDER SMALL CLAIMS COURT

I know this may come as a shocker, but lawyers are expensive.  This simple fact can make it difficult to hire a lawyer to chase down your friend who owes you $3,500 and refuses to pay up.  It’s pretty simple math, really.  At $300 an hour or more, a lawyer can ring up a sizeable bill in fairly short order, particularly if your friend – uh, former friend – won’t cough up the money without being served with a lawsuit.  Pursuing your claim with the assistance of an attorney, even in the simplest case, will cost at least five to ten thousand dollars, and far more than that if it is vigorously litigated.  So what to do?

Enter one of the best things our court system has to offer: Small Claims Court.

What are the rules and procedures which apply to small claims?  If you’re having trouble falling asleep some night, you can read the operative sections of the California Code of Civil Procedure (sections 116.110 to 116.950).  It makes for scintillating reading.  But I’ll save you the trouble, and provide you with some basic information and a few useful links.

Small Claims Court is uniquely designed to deal with cases which have a relatively small value.  The general jurisdictional limit for a small claims action “brought by a natural person” is, generally speaking, $10,000. Code Civ. Pro. § 116.221.  Bear in mind that the limit is reduced to $7,500 for a claim for bodily injuries resulting from an automobile accident if a defendant is covered by an insurance policy that includes a duty to defend.  Code Civ. Pro. § 116.224.  For corporations and other business entities the general limit is $5,000 (there are some exceptions).  Code Civ. Pro. § 116.220.

So if you contact my law office (www.SonomaLawOffice.com; Xavier@SonomaLawOffice.com) figuring I should be able to help you out with one of the types of cases I handle (employment cases, business disputes, real estate, construction, probate and will contests, personal injury matters, and writs and appeals), if the value is low enough I very well might recommend that you pursue your case in the small claims court.

The California State Bar Association provides a very good pamphlet which summarizes the small claims process, and discusses some of the advantages and disadvantages of proceeding in small claims court.  Here’s the link: http://www.calbar.ca.gov/Public/Pamphlets/SmallClaims.aspx.  The PDF version is here: http://www.calbar.ca.gov/LinkClick.aspx?fileticket=h1oDSR8kUmA%3d&tabid=1394.  Please note, however, that when I last checked, the pamphlet had not been updated to reflect the new $10,000 jurisdictional limit discussed above.

Another excellent source of assistance is sometimes provided by the courts.  The Sonoma County Superior Court, for example, provides services of a small claims advisor through the Empire College School of Law in Santa Rosa.  Here’s the link: http://www.empcol.edu/small-claims-advice.  The court’s website also sets forth a number of useful tips to keep in mind before filing and when appearing in court: http://sonoma.courts.ca.gov/divisions/civil.  Scroll about half-way down the page to find the tips, which for your convenience I’ve also pasted below:

The following may help you better understand the functions and limitations of the Advisor Service:

  1. The Advisor can only assist you in matters which could involve Small Claims Court and related areas.
  2. The Advisor will offer you information, opinions and advice based upon education, experience, & the facts presented.
  3. The Advisor may provide information regarding referrals to other agencies.
  4. The Advisor may suggest a lawyer referral service when issues are complex or more detailed attention is desired.
  5. The Advisor may refer you to the Law Library or other source to research your own inquiries further.
  6. The Advisor cannot represent anyone and is not an advocate.
  7. The Advisor does not prepare documents.
  8. Communications with the Advisor are confidential.
  9. Advisors have the immunity conferred by Section 818.9 of the Government Code with respect to the advice given.
  10. Please remember, often there is no clear-cut, exact answer

Some things to consider before filing or defending a suit:

  1. Have I tried to negotiate and possibly settle the dispute?
  2. Have I made a demand for payment or performance?
  3. Is the suit brought within the proper time limits?
  4. Do I have a case, do I have a defense?
  5. Who do I sue, where do I sue?
  6. Can I get the defendant(s) served properly before trial?
  7. Can I collect if I win?
  8. Is the legal theory on which my case or defense is based sound?
  9. Certain rights are waived in Small Claims Court such as plaintiffs right to appeal, pre-trial discovery, etc. Also, other procedural & evidentiary rules do not apply or are applied differently in Small Claims Court.
  10. Small Claims Judges, although they may, are under no obligation to explain their decisions.

Some tips for Court:

  1. Be prepared.
  2. Learn a little law.
  3. Get your story straight.
  4. Present proof, not just a good story.
  5. Don’t make the Judge guess.
  6. Be brief, stick to the point, only offer relevant testimony and evidence.
  7. Don’t argue with the other party, direct your comments to the Judge.

I’m always happy to take a few minutes to get someone started, so don’t hesitate to call me to discuss how the small claims process works!

EMPLOYEE OR INDEPENDENT CONTRACTOR? IT’S NOT SO SIMPLE

I often hear people state matter-of-factly that they have hired independent contractors to do some work for them, relishing the fact that they don’t have to worry about payroll, employer withholdings, and those pesky wage and hour laws (the existence of an employer-employee relationship is necessary in order to invoke wage and hour protections under California law).  Generally, the more they tell me about it, the less convinced I am that the people they’ve hired are truly independent contractors.  And I can assure you that the ramifications of misclassifying workers as independent contractors rather than employees can be very expensive!

So what is an independent contractor?  This article will briefly explore the factors which courts and the Division of Labor Standards Enforcement (a division of the California Department of Industrial Relations) use in determining whether a working relationship is “independent contractor” or “employer-employee.”  I will focus on California law, which is not greatly different than federal law, and as a general matter the same result will likely (though not always) be reached.

For many years California courts have invoked a “right of control” test to determine whether a worker is an employee or an independent contractor.  The California Supreme Court, in S.G. Borello & Sons v. Department of Industrial Relations (1989) 48 Cal.3d 341, articulated the “right of control” test, while also recognizing its limitations: “The principal test of an employment relationship is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired . . . .  However, the courts have long recognized that the ‘control’ test, applied rigidly and in isolation, is often of little use in evaluating the infinite variety of service arrangements.  While conceding that the right to control work details is the ‘most important’ or ‘most significant’ consideration, the authorities also endorse several ‘secondary’ indicia of the nature of a service relationship.”  S.G. Borello & Sons, 48 Cal.3d at 350.

Thus, employers must also consider, at a minimum:

  • Whether the employer has the right to discharge the worker at will, without cause;
  • Whether the one performing services is engaged in a distinct occupation or business;
  • Whether the kind of occupation is usually done under the direction of the principal or by a specialist without supervision;
  • The skill required in the particular occupation;
  • Whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work;
  • The length of time for which the services are to be performed;
  • The method of payment, whether by the time or by the job;
  • Whether the work is a part of the regular business of the principal;
  • Whether the parties believe they are creating the relationship of employer-employee;
  • The worker’s opportunity for profit or loss depending on his or her managerial skill;
  • Whether the service rendered is an integral part of the alleged employer’s business.

All of the above factors, and perhaps more, should be evaluated before classifying a worker as an independent contractor.  It is critical to recognize that there is no bright-line test.  Keep in mind that not every factor may apply to a given relationship.  It is important to seek professional advice on this issue.

The best approach is: If in doubt, classify the worker as an employee.

Helpful Links

I’ve posted some links below which may prove helpful for employment or general litigation questions and research:

HELP!! DO I NEED A LAWYER?!

Most people at some point ask themselves (or their friends), “Do I need a lawyer?”  If you’re asking the question, then you should at least contact a lawyer.  It is only by talking to a lawyer about your issue or problem that you can determine whether you actually need to hire a lawyer.

There are of course a multitude of factors which will determine your course of action, many of which can be addressed in your conversation with a lawyer.  Is this something that I can handle by myself?  Do I really want to pay a lawyer to do this for me?  Is it worth the time, effort and cost to hire a lawyer?  Will the lawyer take my case on a contingency basis, or will I have to pay an hourly rate?  A good lawyer will help you evaluate your options, but in the end the decision is yours to make.

So how do you go about finding a good lawyer?  The best way is usually through referrals.  For example, ask your family, friends, business acquaintances, doctor, insurance agent, or other people you know.  Use common sense, of course.  If your issue concerns a potential claim against a business acquaintance you might not want to ask that person if they know of a good lawyer!  You might also do a local internet search or check the phone book.  The local county bar association might have a lawyer referral service.  In fact, our very own Sonoma County Bar Association has a good lawyer referral program; go to sonomacountybar.org.  (Full disclosure: I’m a panelist for the SCBA Lawyer Referral Service).  And don’t forget about your local Chamber of Commerce.

Okay, you now have a name (or preferably two or three).  What’s next?  Make the initial contact by phone or e-mail, giving a brief description of why you’re calling.  Make sure that your matter is something within the lawyer’s practice area or is otherwise something that the lawyer can competently handle.  For example, my office (SonomaLawOffice.com) handles employment law cases, business disputes, real estate, construction, probate and will contests, personal injury matters, and writs and appeals.  If someone calls me about a workers’ compensation, tax or bankruptcy matter, I will not consider taking the case because those cases are not in my practice areas.  Practice area limitations also apply to most other attorneys.

The lawyer (or his or her assistant) may conduct a pre-screening by phone to determine whether they feel your issue is something they can or want to handle.  It’s not unusual to make many phone calls without finding a lawyer who will meet with you.  This may have more to do with the lawyer’s schedule or comfort zone with your issue than the merits of your case (though not always).

Assuming you have found a lawyer whose practice area is appropriate to your issue and who would like to discuss your case with you, make an appointment for an initial face-to-face consultation.  I believe it is vitally important to actually meet the lawyer you are considering hiring.  A phone conversation is simply not enough.  Keep in mind that not all lawyers provide a free initial office consultation.  Although some lawyers will provide a half-hour or an hour at no charge, it’s not unusual for a lawyer to charge full rate (or perhaps a reduced rate) for a consultation.  Remember to ask about the charge for the initial consultation at the time you make your appointment.  Surprises should be avoided!

Now you show up for your meeting.  How does it work?  This is, after all, probably a foreign environment for you.  First, bear in mind that your communications with the lawyer are privileged.  The lawyer-client privilege protects certain communications between a client and his or her lawyer, and keeps those communications confidential.  Be sure to ask the lawyer about the privileged nature of your conversation.

In all likelihood the lawyer will ask you a lot of questions.  But don’t be afraid to ask questions of your own.  In fact, you should go to the meeting with a list of any questions you have.  Ask the lawyer about his or her experience, in particular with issues similar to yours.  You should also ask about how communications between you and the lawyer’s office will be handled if you retain the lawyer’s services.  Clear and prompt communication is essential to a good relationship.  Ask any other questions which are important to you.

Be mindful of the interaction between you and the lawyer.  If you don’t “click” with the lawyer, or if for any reason you don’t feel a connection, it may be difficult or impossible to work effectively with the lawyer.  You will likely spend a lot of time with the lawyer over the course of time it takes to deal with your legal issue, so a mutually comfortable relationship is paramount.  The bottom line is: personality matters!  Of course, you also want a lawyer who is competent, experienced, honest and communicative.

If you and the lawyer agree to work together, in most cases a written agreement for representation is required.  Even if not, it is always a good idea to have your agreement in writing.  Review the agreement carefully, and ask questions if you have any.  Fees, whether hourly, contingent or flat fees, are negotiable.  And remember, your lawyer is working for you!

Hopefully these tips will help you select the right lawyer.  Good luck!