I was discharged from my former employer in late January. I decided to be fair and send a demand letter for the unpaid wages, overtime and expenses. The total came to approx. $3711. I mentioned in my letter that I could go to the labor commissioner and there could be additional fees.
My former employer is HORRIBLE at keeping records. His lawyers letter is full of inaccuracies. Should I send all the documents that would explain otherwise? Or should I just go to the labor commissioner?
The letter states that I was never give permission to access company files from home, but over and over I communicated with my employer, while at home working. The letter also states that I was not allowed to take paperwork from the office. Again, I communicated via email, text message etc. I have proof!
Although you wouldn't need an attorney to file a wage claim with the Division of Labor Standards Enforcement, it is quite backed up and may take a while. If the amount you are seeking is less than $10,000, probably the best course of action is to file a small claims court lawsuit. You would not need an attorney, and you would be able to obtain a judgment in one or two months.
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 for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.
Employment / Labor Attorney
I wouldn't bother trying to persuade the employer's attorney that your case has merit. The employer's attorney doesn't care and won't care until it has to. It will only have to when it is facing litigation or the threat of litigation. Until you file a claim or lawsuit, or retain an attorney, the employer's attorney has no reason to take you seriously.
In addition to the $3,711, your employer probably owes you more. California law requires employers to pay an employee's final wages at the time the employer ends the employment, or within 72 hours if the employee resigns without giving 72 hours notice. "Final wages" consist of regular pay, overtime pay, accrued and unused vacation pay, PTO, commissions that can be calculated, some bonuses and perhaps other components. It does not include unused sick leave.
If the employer does not pay as required, there is a penalty against the employer and in favor of the employee: the employee’s pay continues as if the employee were still working, every day until the employer pays in full, up to a maximum of 30 days. The employee is entitled to interest at 10 per cent per annum on the unpaid amount. Also, if the employee must go to court to get his or her pay, then the employee is awarded reasonable attorney’s fees and costs of suit.
For purposes related to unpaid wages, overtime and expenses, it is irrelevant whether you were given permission to work from home. You DID work from home and the employer knew it. It is liable for your wages. The employer could have fired you for breaking rules but that would not deny you the wages you earned.
You might have a harder time convincing unemployment that you are eligible if the employer contests a claim on the basis that you broke work rules so were fired for misconduct - a disqualifying event. However, your evidence of communication with the employer should serve ou well here.
I hope you can resolve your situation and wish you the best.
twitter.com/MikaSpencer *** 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. ***
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Employment / Labor Attorney
If you are owed wages, overtime and expenses, and your employer willfully withheld the money, you are also owed waiting time penalties of 30 days, plus interest at 10% on the ovetime and expenses amounts PLUS attorneys' fees if you retain counsel (but not if you file your claim with the Labor Commissioner.) Call an employment law attorney. Many offer a free phone consultation and take wage claims at no cost to you. A demand letter from an attorney mat get the job done. 949-481-6909.