Hi! California State Labor code says that on the
termination/resignation of an employee, an employer is required to pay
all outstanding wages (including vacation days) within 72 hours of
termination. If the final wages are past that 72 hours, and the
vacation pay is paid separately, late, and an incorrect amount, do
penalties accrue on those amount separately?
Absolutely fantastic information and citing! Exactly what I need to
file a complaint with the labor board. TUTUZDAD, you ROCK!
RedNeckMystic
Dear redneckmystic-ga;
Thank you for allowing me an opportunity to answer your interesting
question. Obviously we cannot offer legal advice but merely answer
your question about what is stated in published law:
?If the final wages are past that 72 hours, and the vacation pay is
paid separately, late, and an incorrect amount, do penalties accrue on
those amount separately??
Final Pay issues are covered under California Labor Code Section 203.
?203. If an employer willfully fails to pay, without abatement or
reduction, in accordance with Sections 201, 201.5, 202, and 205.5, any
wages of an employee who is discharged or who quits, the wages of the
employee shall continue as a penalty from the due date thereof at the
same rate until paid or until an action therefor is commenced; but the
wages shall not continue for more than 30 days. An employee who
secretes or absents himself or herself to avoid payment to him or her,
or who refuses to receive the payment when fully tendered to him or
her, including any penalty then accrued under this section, is not
entitled to any benefit under this section for the time during which
he or she so avoids payment. Suit may be filed for these penalties at
any time before the expiration of the statute of limitations on an
action for the wages from which the penalties arise.?
CALIFORNIA LABOR CODE SECTION 203
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab&group=00001-01000&file=200-243
California Labor Code 227.3 speaks on the issue of vacation pay as wages:
?227.3. Unless otherwise provided by a collective-bargaining
agreement, whenever a contract of employment or employer policy
provides for paid vacations, and an employee is terminated without
having taken off his vested vacation time, all vested vacation shall
be paid to him as wages at his final rate in accordance with such
contract of employment or employer policy respecting eligibility or
time served; provided, however, that an employment contract or
employer policy shall not provide for forfeiture of vested vacation
time upon termination. The Labor Commissioner or a designated
representative, in the resolution of any dispute with regard to vested
vacation time, shall apply the principles of equity and fairness.?
In this labor law handbook from the Legal Aid Society, Employment Law
Center, these issues are addressed specifically. The handbook says in
part:
4.?Waiting Time? Penalties for Late Final Wages
?An employer that willfully fails to pay all final wages to an
employee within the time limits specified above may be assessed
?waiting time? penalties (Cal. Labor Code 203). If an employee files
a claim for unpaid wages and penalties are assessed, the employer must
pay the employee?in addition to the unpaid wages?a full day?s wages
for every day the wages remain unpaid. Waiting time penalties stop
accruing when a complaint for unpaid wages is filed with a court, but
penalties do not stop accruing if, instead, a claim for unpaid wages
is filed with the Labor Commissioner?s office (see ?Taking Legal
Action to Recover Unpaid Wages? below for further information).
Regardless of the type of legal action taken, however, waiting time
penalties stop accruing when they reach the legal limit of 30 days?
pay.?
GETTING YOUR FINAL PAYCHECK
http://www.las-elc.org/finalpay1.pdf
??do penalties accrue on those amount separately??
Notice that the handbook says:
?An employer that willfully fails to pay *ALL* final wages to an
employee within the time limits specified above may be assessed
?waiting time? penalties?
Clearly, unless there is some kind of collective bargaining agreement,
vacation pay IS considered wages and should be paid at the same time
final pay is rendered (see California Labor Code 227.3 above). The
implication here is that if ALL of the wages (including vacation pay)
are not paid, the Final Pay statute has not been fully complied with
according to the law. Therefore it stands to reason that if an
employer willfully fails to pay any PART of the wages (vacation pay,
for example) then he is not in compliance with the law that requires
him to pay ALL wages in a timely manner. Whether or not a penalty
would be assessed against only the late payment or the entire amount
would be an issue for the court to decide since the law requires the
employer to pay ALL the wages. In other words, since the statutes
don?t specifically address this issue, it would be at the court?s
discretion to decide whether or not ?partial? payment means
non-payment in it?s entirety, or if partial payment means some of the
wages were late while another portion was in proper compliance.
On the other hand, if the issue is a matter of miscalculation and the
non-payment was merely related to a clerical error, then nothing
willful has occurred and the penalties might not be accessed depending
on the reason for the error. This too might be a matter for a civil
court to decide should the former employee decide to file suit,
provided you could not settle it between you to your mutual
satisfaction.
Finally, if the unpaid wages are part of ?disputed? pay (you claim you
are entitled to more than your employer says you get) then this too
would be something a civil court would probably have to rule upon, at
which time the determination would be made as to whether or not
penalties would be levied (or not) and against which portions. There
are provisions to allow you to file suit against an employer in order
to have such a claim decided (see the ?GETTING YOUR FINAL PAYCHECK?
handbook above) and I recommend you CONSULT AN ATTORNEY about those
options.
I hope you find that my research exceeds your expectations. If you
have any questions about my research please post a clarification
request prior to rating the answer. Otherwise I welcome your rating
and your final comments and I look forward to working with you again
in the near future. Thank you for bringing your question to us.
Best regards;
Tutuzdad-ga ? Google Answers Researcher
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