How to Recover Unpaid Wages And Commissions From an Employer in California
Below is a brief, practical guide on how to recover wages from an employer in California:
1. Find out the exact reason that your employer is not paying your wages.
The first step you should take is making a friendly demand for payment of any wages due. If the employer refuses to pay, they will likely explain to you why. This information should help you better determine how strong your cases is, considering the employer's potential defenses. If the employer ignores your demand, then you can of course choose to file a claim right away.
2. Make sure the employer is not insolvent.
If the employer says that they experience serious financial hardship and ask for a little more time to pay, then you should probably at least consider agreeing to a payment plan. This will be easier, cheaper and quicker than initiating a legal claim. If there is an issue with an employer's solvency and even staying in business or if they went out of business and/or declared bankruptcy, then you should try to find out whether they are worth going after, i.e. whether they have any assets or funds from which you would be able to get the compensation you are owed. There is little benefit in getting a judgment against the company that can't and won't be able to pay. Therefore, before you do all the legal work, make sure it's worth the effort.
3. Depending on the amount of unpaid wages and other factors, consider going to court v DLSE.
Assuming that you determined that the employer has not solvency issues, and they are unjustly refusing to pay you what's owed to you, you have two legal options. You can either (1) file a lawsuit in court or (2) file a claim with your local DLSE (Department of Labor Standards Enforcement). The DLSE claim process is quicker and more simple but it's not always the best way to pursue a wage claim strategically. Which route is better for you depends on a number of factors, including the amount of unpaid wages in dispute, whether you can and want to bring other claims along with the claim for failure to pay wages (such as discrimination, wrongful termination, etc), whether you were an employee or an independent contractor, and a number of other factors. An experienced employment attorney should be able to advise you on the best option for your specific situation.
4. Consider the practical implications of bringing a claim against your current employer.
If you are still employed with the same employer against whom you are planning to file a wage claim, you must ask yourself whether bringing a claim is worth the risks associated with it. Even though retaliation is illegal, it's very common, and many employers terminate employees with little hesitations after the file any kind of claim, as they consider it a some type of insubordination or even betrayal. Only you can decide whether taking this risk is worth it for you. Do you care about keeping your job, or it doesn't matter to you and you are pretty much ready to leave anyway? How likely do you believe your employer is retaliated against you based on what you have witness them do or not do so far with respect to other employees? Is there any way for you to simply inquire about your wages and see if you can work it out with your employer amicably before bringing a claim? These are the questions you should think about and consider before filing a claim - whether in court or at DLSE. For information about common wage violations, please refer to this employee labor code checklist.
5. Appealing DLSE Wage Claim Award Issued By A Labor Commissioner
For useful information on appealing an adverse decision of a labor commissioner in a DLSE wage claim hearing, please read these wage claim appeal tips.
6. Waiting time penalties
You may be entitled to "waiting time" penalties for any unpaid wages. Be sure to understand when you may or may not be entitled to these waiting time penalties and be sure to include them in your case for unpaid wages.
1. Find out the exact reason that your employer is not paying your wages.
The first step you should take is making a friendly demand for payment of any wages due. If the employer refuses to pay, they will likely explain to you why. This information should help you better determine how strong your cases is, considering the employer's potential defenses. If the employer ignores your demand, then you can of course choose to file a claim right away.
2. Make sure the employer is not insolvent.
If the employer says that they experience serious financial hardship and ask for a little more time to pay, then you should probably at least consider agreeing to a payment plan. This will be easier, cheaper and quicker than initiating a legal claim. If there is an issue with an employer's solvency and even staying in business or if they went out of business and/or declared bankruptcy, then you should try to find out whether they are worth going after, i.e. whether they have any assets or funds from which you would be able to get the compensation you are owed. There is little benefit in getting a judgment against the company that can't and won't be able to pay. Therefore, before you do all the legal work, make sure it's worth the effort.
3. Depending on the amount of unpaid wages and other factors, consider going to court v DLSE.
Assuming that you determined that the employer has not solvency issues, and they are unjustly refusing to pay you what's owed to you, you have two legal options. You can either (1) file a lawsuit in court or (2) file a claim with your local DLSE (Department of Labor Standards Enforcement). The DLSE claim process is quicker and more simple but it's not always the best way to pursue a wage claim strategically. Which route is better for you depends on a number of factors, including the amount of unpaid wages in dispute, whether you can and want to bring other claims along with the claim for failure to pay wages (such as discrimination, wrongful termination, etc), whether you were an employee or an independent contractor, and a number of other factors. An experienced employment attorney should be able to advise you on the best option for your specific situation.
4. Consider the practical implications of bringing a claim against your current employer.
If you are still employed with the same employer against whom you are planning to file a wage claim, you must ask yourself whether bringing a claim is worth the risks associated with it. Even though retaliation is illegal, it's very common, and many employers terminate employees with little hesitations after the file any kind of claim, as they consider it a some type of insubordination or even betrayal. Only you can decide whether taking this risk is worth it for you. Do you care about keeping your job, or it doesn't matter to you and you are pretty much ready to leave anyway? How likely do you believe your employer is retaliated against you based on what you have witness them do or not do so far with respect to other employees? Is there any way for you to simply inquire about your wages and see if you can work it out with your employer amicably before bringing a claim? These are the questions you should think about and consider before filing a claim - whether in court or at DLSE. For information about common wage violations, please refer to this employee labor code checklist.
5. Appealing DLSE Wage Claim Award Issued By A Labor Commissioner
For useful information on appealing an adverse decision of a labor commissioner in a DLSE wage claim hearing, please read these wage claim appeal tips.
6. Waiting time penalties
You may be entitled to "waiting time" penalties for any unpaid wages. Be sure to understand when you may or may not be entitled to these waiting time penalties and be sure to include them in your case for unpaid wages.