Do you feel like your employer is constantly ripping you off? Does your employer have an unconventional pay system that doesn’t pay by the hour? Is your employer constantly nickeling and diming you on pay? Your employer may be denying you minimum wage pay or contract wages.
Failure to Pay Minimum Wage
Although some exceptions apply, pursuant to California labor law, all employees must earn a minimum wage of $10.00 an hour. Employers often violate this law by using alternative payment schemes that are intended to save them money but ultimately end up paying an employee less than minimum wage. Some examples of these alternative payment schemes include: piece-rate, commission, and other works except outside sales persons. For hourly workers, their hourly rate of pay must be at or above this minimum. For piece-rate employees (those that are paid based on the number of units they produce rather than number of hours they work), the average hourly earnings during the workweek must equal at least the minimum wage. Similarly, commission that is paid to employees must be sufficient to meet the minimum wage requires for the workweek.
Furthermore, many cities have ordinances that mandate a higher minimum wage than that required by the state law and which must be followed. For example, the city of San Francisco enacted a citywide minimum wage ordinance that increases minimum wage to $13.00 an hour beginning July 2016, which then increase to $14.00 an hour in July 2017, and finally $15.00 an hour in July 2016. Many other cities and counties throughout California have enacted similar minimum wage laws, including Santa Barbara, Santa Cruz, Santa Monica, San Francisco, San Jose, Sonoma, Ventura, Sacramento, Richmond, Pasadena, Oxnard, Oakland, Mountain View, Marin, Hayward, Fairfax, Emeryville, Berkeley, and Albany.
Liquidated Damages for Failure to Pay Minimum Wage
Under this same law, employees are entitled to, along with the wages that have been unlawfully withheld, liquidated damages equal to the amount of the underpaid minimum wages plus interest. This means that the amount of unpaid minimum wages is doubled as a penalty against the employer. Liquidated damages for failure to pay minimum wage serves as a penalty against employers who engage in wage theft and denying the minimum amount of pay required by law to their employees.
Attorney Fees, Interests, and Costs in Minimum Wage Claims
As a further penalty and disincentive to prevent employers from engaging in wage theft and denying workers minimum wage, the California legislature has put in place Labor Code Section 1194, which allows employees to recover attorney fees, interests, and litigation costs in a successful action to recover minimum wages.
Failure to Pay Contract Wages
Wages paid by an employer than are above minimum wage are fixed as a matter of agreement between the employer and employee. Unpaid wages are enforceable by an action by way of a lawsuit for breach of contract. Often times an employer will withhold wages, and not pay them to an employee when the employer is having financial problems, or intends simply to shut down its business presuming that once the business is dissolved the employer has no liability to pay.
- “Off the Clock Claims:” These are claims whereby the employer is liable for wages at the contracted rate for work performed while clocked out. The employee must have been under the employer’s control or suffered or permitted to work, and the employer must have known or reasonably should have known that the employee was performing work. Examples of this include, preparation time whereby the employee is clocked out, as well as “off the clock” travel time.
Attorney Fees for Prevailing Party in Contract Wage Claim
Labor Code section 218.5 provides attorney fees and costs for the prevailing party (if requested in the
complaint or answer). However, it is important to note that a prevailing party that is not an employee may recover attorney fees and costs under this statute only if the court finds that the employee brought the lawsuit in bad faith.