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  1. #1
    Join Date
    Apr 2019
    Posts
    15

    Default Waiting Time Penalty

    My question involves labor and employment law for the state of: CA what if i worked last 10/16-10/17/2018 then went on temporary leave, then no paycheck directly deposited to my bank acct on 11/10/2018 for those 2 days I last worked, then asked payroll on Monday, the 12th that my check was mailed out on 11/9/2018 along with my termination letter, and replacement check was offered and issued on 11/14/2018, as final paycheck. But check was only for the last 2 days, excluding those hours worked but remained unpaid, and for unpaid overtimes that I was claiming, that remained unpaid. What if I bring the matter to Labor Commissioner and later awarded for those unpaid wages, is waiting time penalty also enforceable???

  2. #2
    Join Date
    Jun 2006
    Location
    Massachusetts
    Posts
    24,079

    Default Re: Waiting Time Penalty

    The DLSE, and only the DLSE, decides when the waiting time penalty is appropriate. There is no problem with asking for it, and if there are wages outstanding you should definitely file a claim for them. But it's up to the DLSE when it considers the waiting time penalty to apply. You may get it but its not a sure thing.

  3. #3
    Join Date
    Apr 2019
    Posts
    15

    Default Re: Waiting Time Penalty

    i see, thank you for that information, but let me ask this as well, what if I file a wage claim with DLSE but I only have paystubs and time records of last 13 pay periods but theres more to claim however i do not have the rest of my paystubs and time records (been with employer for 8 yrs), do I make the request personally for employer to provide payroll records or can the DLSE compel employer to produce those records? thank you again for the response

  4. #4
    Join Date
    Jun 2006
    Location
    Massachusetts
    Posts
    24,079

    Default Re: Waiting Time Penalty

    You submit what you have. The DLSE will go to the employer for their records. You do not have to prove what you worked; your employer has to prove you didn't work what you claim.

  5. #5
    Join Date
    Apr 2019
    Posts
    15

    Default Re: Waiting Time Penalty

    That is how I understand the wage claim process by DLSE, but DLSE of course requires the total unpaid wages I am claiming, and I can only supply that information derived from available records, and I have more unpaid wages to include if I have my other payroll records, which i thought i could rely on DLSE to compel employer to produce.

  6. #6
    Join Date
    Jun 2006
    Location
    Massachusetts
    Posts
    24,079

    Default Re: Waiting Time Penalty

    You may take my word for it; the DLSE will definitely be going after the employer for his records. You tell the DLSE what you think you are owed and provide what backup you have. The DLSE will not stop demanding records from the employer until they are satisfied. Past experience here.

  7. #7
    Join Date
    Apr 2019
    Posts
    15

    Default Re: Waiting Time Penalty

    im really glad to hear that, at least I did not waste time in waiting for DLSE to take action in my behalf, now I will focus with helping DLSE and work with the deputy hand in hand so i can be paid what I was owed by former employer. Thank you very much, I am truly enlightened.

  8. #8
    Join Date
    Aug 2013
    Posts
    284

    Default Re: Waiting Time Penalty

    More generally, the legal requirement to keep time accounting records is one the employer. It does not hurt you to provide what records you have but you were never legally required to keep them in the first place. CA-DLSE does not always believe the employee, but they will always require the employer to provide records (as required by law). Past that, both sides present what they thinks the facts are. Always talk to the Hearing Officer. Speak when spoken to. NEVER!!! directly respond to the other side. If the HO wants your opinion or input, they will ask for it. The side the brasses of the HO least often wins.

    My boss went to one of these hearings. We had a slam-dunk case, and my boss would not shut up. He paid no attention what so ever the the HO, who is a judge in all but name only, and it is quite possible to lose a case through one's actions that you would have otherwise won if you were paying attention. Listen carefully to any instructions they give you and FOLLOW THEM. Anyone going in thinking that they know the HOs job better then the HO does has already lost.

  9. #9
    Join Date
    Jun 2006
    Location
    Massachusetts
    Posts
    24,079

    Default Re: Waiting Time Penalty

    Real-life experience: The DLSE contacted me and said, in essence, "You did not pay this employee her earned vacation time. Pay her."

    I sent back copies of the payroll records showing that I had, indeed, paid the employee her earned vacation time.

    The DLSE said, "You did not pay this employee her earned vacation time. Pay her."

    I sent back copies of the pay stubs, the attendance records, the calculations, and I don't know what all.

    The DLSE said, "You did not pay this employee her earned vacation time. Pay her."

    Lather, rinse, repeat. I had paid the employee what she was due and I sent them every record I could find or devise that showed that, and they STILL demanded that I pay her what she was owed.

    It wasn't until the employee herself said, "Oops, I made a mistake. They did pay me my vacation time - thanks but never mind" that the DLSE stopped demanding that I pay her what I "owed" her. And even then, the attitude they took was along the lines of "Well, you wiggled out of it this time but don't let it happen again".

    This when I had paid her every penny she was owed, when she was owed it, and could prove it.

    So I don't think you need to worry that the DLSE won't come looking for the employer's records. I'd be more worried about whether the employer's records were accurate than I would be that the DLSE will ask for them.

  10. #10
    Join Date
    Apr 2019
    Posts
    15

    Default Re: Waiting Time Penalty

    Awwww, when you say DLSE often doesnt believe employees, does it mean employee has smaller chance of proving their claim? Example, my paystub will show I was paid regular rate for hours in excess of 8 in a day, because I did not work over 40 hours in a workweek? Is that sufficient to claim for unpaid overtime???

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