Written by attorney John Francis Mccarthy

What you don't know about California "waiting time" penalties.

Most people don’t know it, but one of the best ways for an employee to make a little extra cash after he or she leaves a job is to seek “waiting time" penalties. Under California Labor Code §203, Labor Commissioners or Courts must impose a “waiting time" penalty of up to 30 days pf pay for the employer’s willful failure to pay wages due a discharged or quitting employee.

Many people say “so what? There is no way an employee can prove an employer’s failure to pay wages was ‘willful.’" But those people have to understand a “willful" failure to pay does not require any kind of sinister intent or malicious purpose to defraud workers of wages. “Willful failure" in this case just means an intentional failure or a refusal to perform an act that is required to be performed.

For example, Employee Paul worked for Dapex Restaurant as a waiter. Employee Paul worked about 8 hours per day and made about $15 per hour once you included tips. Employee Paul missed a meal period on December 3. On December 15, Employee Paul got paid for all his hours worked, but did not get paid the 1 hour “premium" payment for his missed meal on December 3. Employee Paul was tired of working for Dapex Restaurant so on December 16, Employee Paul put in his “two weeks notice." December 31, was Employee Paul’s last day. Dapex Restaurant had a going away party, gave Employee Paul cake and his final paycheck. However, Employee Paul never got paid for his 1 hour premium payment for the missed meal period. Employee Paul then filed a wage claim with the Labor Commissioner on January 31, seeking $3,600 in “waiting time" penalties and wins. How does it work? Dapex Restaurant failed to pay Employee Paul his meal period premium when they could have. As such, it is a “willful" failure to pay. Therefore, Employee Paul is entitled to $15 per hour (hourly rate including tips), multiplied by 8 hours (daily average of work) multiplied by 30 days (maximum allowable since Employee Paul was never paid). Pretty amazing huh?

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