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Can I sue a previous employer for not paying me my promised salary?

San Mateo, CA |

I started a new part-time job and quit at end of the week because I got an offer for
full-time work with benefits, I went in after 5 days to pick up my check as instructed
and they refused to pay me for the 2 days I worked. How much can I sue for in Small
Claims Court?

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Attorney answers 3

Best Answer

Adding to the other responses: In a small case, attorneys are less likely to proceed all the way through litigation because they most likely will not receive all of their attorney's fees, and it can take as much work to litigate a small case as it does to litigate a larger case. Courts are very, very backed up and don't want low-value cases cluttering the courts when there is an alternative (Small Claims Court). Plus, many or most cases that settle outside of court (and most of them do) settle for a lump sum from which your attorney will receive a percentage, usually between 35% and 50%, depending on many factors. Under such a circumstance, it makes more sense to go to Small Claims so you can receive a larger recovery.

Assume you made $20 per hour and worked 5 hours per day. You are owed two days wages, or $200. Assume you are entitled to the full 30 days of waiting time penalties, or $3,000. Assume you are entitled to another $50 in interest. Your maximum recovery would be $3,250. That is a lot of money for an individual, but consider that courts handle plenty of high-dollar cases. Even if the court awarded reasonable attorney's fees, and even though the law says the attorney should receive all of his or her reasonable attorney's fees, most courts are reluctant to award $20,000 or more for in attorney's fees for a case valued at $10,000 or less (the Small Claims limit). And if an attorney took the case on a contingency and got 30%, that leaves you with a very small recovery, and leaves the attorney with almost nothing. How hard do you think the attorney will work for $1,000 in fees? For most California attorneys, that is how much they charge for two to four hours of work. *** 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. ***


An employer who fails to pay an employee who quit within seventy-two hours of resignation owes "waiting time penalties." You are entitled to a full day's wages for every day, up to 30 days, until the employer either pays or you bring an action in court. The employer must pay a day's wages even for days that you would not ordinarily work.

A small claims court would be a good place to go. The problem is that the court may not know about waiting time penalties. You should refer to them in your complaint or cite Labor Code sections 202 and 203. You could also seek relief from the Division of Labor Standards Enforcement (or Labor Commissioner). They know the law there, but it will take significant longer than going to small claims court will.


If you quit with 72 hours' notice or more, your employer needed to have your final paycheck ready for you on your last day. If you did not give at least 72 hours' notice, your employer needed to have your final paycheck ready within 72 hours. Your former employer must pay you for all time worked. You are entitled to the unpaid wages PLUS one day's pay for each day you have to wait - up to 30 days plus attorney's fees. Call an employment law attorney to discuss. A letter from your attorney to the company may get the job done - and at no cost to you. You can always sue in Small Claims Court, but since you may be able to get legal counsel paid for by your former employer, why would you do that. 949-481-6909.

James Carl Eschen III

James Carl Eschen III


Three reasons to go to small claims court instead of bringing a regular civil action: 1. It's faster. 2. If the employer pays the wages but not the penalties, then wages are no longer at issues and the court cannot award fees; 3. The court may not award the attorney's entire fees, especially if it thinks that the plaintiff should have gone to small claims court.

Marilynn Mika Spencer

Marilynn Mika Spencer


Mr. Eschen makes an excellent point!

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