I was employed in the state of California by a temporary agency. I was fired over the phone after my scheduled working hours on January 30, 2012 at 5:13 pm. I was contacted by the agency and they requested that I submit my final hours via an online site that I could no longer access. They finally told me that my hours were confirmed by my former manager and that they would get my final paycheck to me. My question is two fold as follows: Since the agency has several offices in CA, shouldn't I have been paid the same day? My second question is does the waiting time penalty stop based on the mailing date even if I don't receive the check until days later? Please tell me how many days I would be entitled to receive the waiting day penalty and how it is calculated. Thank you.
Would the waiting day penalty change with the knowledge that the employer sent my final paycheck to me on January 31st via fedex (2nd day) and did not choose the most expeditious option, thereby causing a further delay in getting it to me?
Employment / Labor Attorney
Mr. Chen is correct (except it's the DIVISION of Labor Standards Enforcement, not the Department of Labor Standards Enforcement). To answer your question regarding mailing, the payment is "made" on the date the check is mailed.
By the way, it doesn't matter whether the employer had your work hours at the time it fired you. That is not a valid reason to not pay you at the time of (on the day of) termination. It is the employer's obligation to keep track of employees' hours and to comply with the Labor Code. It doesn't matter if the employer didn't know how much to pay you; it should have found out before taking action.
Note an employee in your situation cannot avoid receiving the check in an attempt to increase the waiting time penalty.
Finally, the waiting time penalty is based on calendar days, not work days, so Saturday and Sunday earn waiting time penalties, too. Maximum of 30 days.
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Yes, same day. 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).
The waiting time penalty starts from the very first date that you were not paid. Under California Labor Code §203, an employer may be liable for a “waiting time” penalty of up to 30 days of pay for the employer’s willful failure to pay wages due a discharged or quitting employee. The penalty applies to the willful failure to pay "any wages," which refers to the definition of "wages" in California Labor Code Section 200. The penalty is measured at the employee’s daily rate of pay and is calculated by multiplying the daily wage by the number of days that the employee was not paid, up to a maximum of 30 days.
For additional information regarding waiting time penalties in California, go to the Department of Labor Standards Enforcement's website at:
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 (who is only admitted to practice law in the State of California). For specific advice about your particular situation, consult your own attorney.