I served 10 days notice period before quit my job. It is been around 20 days after my last day, My employer is not responding for my last paycheck (Salary for duration 1 Month and Four days). when can I expect or after how many days I can file complaint in DOL as per california laws.
Employment / Labor Attorney
Because you gave at least 72 hours notice, your employer was obligated to give you your paycheck on your last day of work, including all earned pay and any accrued vacation or PTO time. California Labor Code section 202(a) states:
"If an employee not having a written contract for a definite period quits his or her employment, his or her wages shall become due and payable not later than 72 hours thereafter, unless the employee has given 72 hours previous notice of his or her intention to quit, in which case the employee is entitled to his or her wages at the time of quitting."
If your employer does not pay you on your last day of work, your regular pay continues until you are paid in full or file a claim or lawsuit for your wages, up to a maximum of 30 days, per Labor Code section 203(a). Note "regular rate of pay" does not include overtime or bonuses. And the thirty days are calendar days, not work days, so it is as if you were being paid for seven days every week, up to the maximum.
You don't need an attorney to pursue your claim. The California Division of Labor Standards Enforcement (DLSE) is a sub-agency within the California Department of Industrial Relations. http://www.dir.ca.gov/dlse/. The DLSE enforces California's wage and hour laws, including those pertaining to overtime, rest and meal breaks, and more. The link for information on filing a wage claim is here: http://www.dir.ca.gov/dlse/howtofilewageclaim.htm.
The DLSE is backed up due to budget cuts, and it may take months or even a couple of years to get your pay. However, you are entitled to interest at 10% per year as you wait.
You can also pursue your claim through an attorney, and the Labor Code allows you to recover your attorneys' fees from your employer if you are successful in your claim.
Under California law, wage and hour claims are often straightforward, and many attorneys' will handle this kind of claim without the client having to pay any attorney's fees up front, with the expectation of getting paid from the employer. That said, unless you were very highly compensated, many attorneys will find your case too small to pursue -- but not all attorneys will feel the same. My point here is that if the first attorneys you contact cannot help you, keep trying because you will probably find an attorney sooner rather than later. And if that fails, you can fall back on the DLSE.
Employment law is complicated and fact specific. You may wish to speak with an experienced plaintiffs employment attorney. To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org, and you can search for attorneys by location and practice area.
I hope you can resolve your situation and wish you the best.
*** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***
Attorney Spencer is correct. In California, an employee who is discharged must be paid all of his or her wages, including accrued vacation, immediately at the time of termination. (Labor Code Sections 201 and 227.3.) However, an employee without a written employment contract for a definite period of time who gives at least 72 hours prior notice of his or her intention to quit, and quits on the day given in the notice, must be paid all of his or her wages, including accrued vacation, at the time of quitting. (Labor Code Section 202.)
An employee without a written employment contract for a definite period of time who quits without giving 72 hours prior notice must be paid all of his or her wages, including accrued vacation, within 72 hours of quitting. An employee who quits without giving 72-hours prior notice may request that his or her final wage payment be mailed to a designated address. The date of mailing will be considered the date of payment for purposes of the requirement to provide payment within 72 hours of the time of quitting. ( Labor Code Section 202).
You don't have to wait. You can a wage claim for the unpaid wages with the California Labor Commissioner. File the claim either by mail or in person with the Division of Labor Standards Enforcement (DLSE) office that handles wage claims for the city/location/community where the work was performed.
Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult your own attorney.
Divorce / Separation Lawyer
Previous counsel is correct in their citation of relevant provisions of the labor code. Without question, you should have been paid in full by now. The good news is that there are penalties and costs available in addition to the back wages presently owed to you. They are very collectable, and you should receive them as soon as possible. Your options are to file a claim with the Labor Board or file a law suit in Superior Court. Sometimes this becomes a difficult decision because if the employer loses the Labor Board level, it could require a trial de novo in Superior Court, and the whole matter will be reheard a second time just as if you had not conducted the original hearing at the Labor Board. Although, many times the employer will roll over after the Labor Board decision for fear of incurring new and additional legal fees, costs, and expenses. If I were you, I would retain the services of experienced legal counsel.
This participating Attorney does not warrant any information provided, nor are we creating an Attorney-Client relationship by providing said information to you on this site. Nothing contained herein is intended to constitute, offer, induce, promise, or contract of any kind. The content provided is presented as a courtesy to be used only for informational purposes and is not represented to be error free. The Law Offices of John N. Kitta makes no representations or warranties of any kind with respect to its answer to inquiries, and such representations and warranties are being expressly disclaimed. Given limited facts, we are attempting to share relevant information concerning this area of the law as a public service.
Attorney Kitta correctly notes that you need not necessarily file a complaint with the Labor Commissioner (Division of Labor Standards Enforcement or "DLSE") before pursuing your statutory rights in civil court. However, there is one distinct advantage to doing so that I think you should be aware of.
If you send a certified letter to the employer and the DLSE detailing the Labor Code provisions you believe the employer has violated, the DLSE has 33 days to make a decision about whether to prosecute your case or not. If you have not heard from the DLSE after 33 days, you can proceed to suit under the Private Attorneys' General Act (PAGA).
Whether you file suit immediately or you first present your claims (important that it be certified mail!) to the DLSE and employer for resolution, you are entitled to the "waiting time" penalties described by my colleagues. However, if you present the claim to the DLSE and employer before filing suit, you may also obtain penalties under the Private Attorneys' General Act on behalf of the State. Depending on the violation and the number of occurrences, the penalties vary from $50-$1000 per violation per employee, and you can recoup all of the penalties on behalf of yourself and all "similarly-situated current and former employees." The best part is that, to bring this sort of PAGA "representative action," you need not meet all the formal requirements of a class-action lawsuit.
Whatever penalties you recover under PAGA are technically penalties owed to the State of California, but by virtue of acting as a private attorney general in collecting those penalties you are entitled to 25% of whatever you recover. This can turn a relatively small private wage claim into a six or seven figure representative action, and I highly recommend you consult with an employer lawyer about your PAGA options in this regard.
The information provided in this Answer is offered for educational purposes only and should not be construed as legal advice or counseling. You should not rely on the information herein in assessing your legal rights, determining to take legal action, in any formal papers filed in a legal or administrative forum, or in any way whatsoever. Moreover, this Answer does not create an attorney-client relationship - only the formal, written agreement required by the State Bar of California can do that. You should always have a full consultation with a lawyer if you are contemplating any sort of legal action.