I worked as a server at restaurant, and I quit the job 2 weeks ago. My employer didn't know about break time and meal time break. I didn't get these break after I started working. Right after I quit the job, I told him about the break and requested more wage. However, it took about 2 weeks for him to meet a lawyer and calculate my right wage. He owed me about $3000 for 10 minutes break, meal break and overtime. He wants to meet me and arrange the wage. Should I get paid "waiting time penalty"? I don't understand why it takes too long to calculate those unpaid overtime and wage.
If I can request waiting time penalty, is it right calculation?
My average working hours was 10 hours, and my hourly wage was $10. I need to add 2 more hours for 10 minutes break and meal break.
My right wage is $10*8 hrs + $10*1.5*4 hrs = $140
However, my employer paid $10*8 hrs + $10*1.5*2 hrs = $110
I worked about 100 days, so he owes me $30*100=$3,000
For waiting time penalty, which is true between $140*14 days = $1,960 or $30*14 days = $420?
Your employer was legally bound to know and follow Calif. labor laws. If you were owed overtime and not paid, you can get up to 30 days' waiting time penalties plus the law states that the employer "shall" pay your attorneys' fees. If your former employer hired an attorney, you should do the same since Calif. labor laws are very nuanced and your employment law attorney can assert the maximum owed to you including interest, waiting time penalties, etc. If you were not getting the "opportunity" to take meal and break periods pursuant to Calif. law, you can get extra money for that. Call an employment law attorney for a free phone consultation and have an attorney represent you to negotiate the full amount you are owed. Find contact info on Avvo.com.
Waiting time penalties are awardable when you can prove the employer willfully withheld all money owed to you within either 72 hours of the day you gave notice of your intent to quit, or the last day you worked, whichever is later. Waiting time penalties are calculated by determining the normal day of pay you earned when you worked. You are entitled to one day of pay at your regular rate times the number of days you were made to wait, limited at 30 additional days of pay. You do not get to add the meal and rest wage penalties into that calculation. If you normally worked 10 hours a day, your "day" of pay is 8 hours times your regular rate, plus 2 hours times 1.5 times your regular rate. If I understand your post, the employer paid correctly. You do not get 100 days of waiting penalties.
You would get 100 meal break wage penalties, and 100 rest period wage penalties, which would come to 200 hours of additional pay at your regular rate, PLUS, if you can prove willful failure to timely pay your final check, waiting time penalties of one day of pay for 30 days only.
Good luck to you.
This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.
No one on this site will calculate your damages for you with regard to your potential wage/hour claim against your employer. It appears you have done so (or had help) already. If you do not have an attorney, do your best to get what you believe you are owed under the Labor Code. If your employer is not willing to pay you what you want, feel free to file a wage/hour claim with the Division of Labor Standards Enforcement (Labor Commissioner) where they will help you along with calculations. Finally, if you want a lawyer to handle your calculations, you should hire one well-versed in the Labor Codes. Good luck to you.
Lesly J. Adams has been licensed to practice law in California since 2010. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult with your own attorney.
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