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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 38129
Experience:  Retired (mostly)
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Wage Claim

Resolved Question:

I still don't get paid my work of 4/16-4/30 and 5/1-5/13. Based on further research and your answer, I'd like to step further. What is going to be the next step? Should I hire lawer?
Submitted: 5 years ago.
Category: California Employment Law
Expert:  socrateaser replied 5 years ago.
You can either file a wage claim with the Division of Labor Standards Enforcement (the Labor Commissioner's Office), or you can hire an employment rights lawyer and file an action in court to recover the lost overtime premiums. In both situations, it will first be necessary to determine your employment status, that is, employee or independent contractor, before the issue of overtime can be addressed and decided.

The links provided above will take you to the relevant resources to make a claim against the employer.

Hope this helps.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!


Customer: replied 5 years ago.

To determine your employment status, that is, employee or independent contractor, I looked at the folloing link.

 

http://www.techprose.com/contracts_1099_criteria.html

 

Who is going to determine my employment status? Can DLSE do that after file a wage claim?

Expert:  socrateaser replied 5 years ago.
Only a judge can determine your employment status. If you file a wage claim and DLSE believes you satisfy the requirements of an employee, then DLSE will contact the staffing agency to get its side of the story. If DLSE thinks that the staffing agency is actually an employer, then it will file an adminstrative action against the agency, and it will be up to the staffing agency to prove to a judge that it's not an employer If the judge rules against the employer, then the staffing agency can either pay up, or appeal to Superior Court. At that point DLSE may or may not continue to represent your interests. If yes, then DLSE will probably prevail, if only because the cost of litigation will bury the staffing agency, and it will be cheaper to simply pay you what DLSE demands. Otherwise, you would have to hire a lawyer, and that could bury both you and the staffing agency.

Most of these cases are quickly settled with some sort of favorable outcome for the employee. However, I cannot say what will happen in your circumstances.

Hope this helps.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!


Customer: replied 5 years ago.

Thank you for your answer. As I said in the very first question, I have signed subcontract agreement after 2 months of W2 employment. Payment term was also stated in the very first question. Since then Solugence paid me as follows. As you see below, I got paid 4/16 - 4/30 payment last Friday.

8/31 - 10/31: W-2 employee status and paid on time.
11/1 - 11/1538 Days
11/16 - 11/3040 Days
12/1 - 12/1540 Days
12/16 - 12/3141 Days
1/1 - 1/1544 Days
1/16 - 1/3142 Days
2/1 - 2/1549 Days
2/16 - 2/2851 Days
3/1 - 3/1559 Days
3/16 - 3/3164 Days
4/1 - 4/1569 Days
4/16 - 4/3090 Days
5/1 - 5/13

 

Should I file a wage and overtime claim with DLSE? Please advise.

Expert:  socrateaser replied 5 years ago.
I am prohibited from advocating a course of conduct. I "justanswer" questsions about the law.

An employer must pay an nonexempt hourly employee on or before the 1st and 15th of each month. An employer must pay a salary-exempt employee at least one each month, on or before the 26th of the month. Labor Code § 204.

Hope this helps.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!


Customer: replied 5 years ago.

OK. It is down to the question of whether I was an employee or an independent contractor. In your very first answer, you said, "My subcontractor agreement is "Probably not" legal." If it is not legal, can I still claim a wage and overtime claim with DLSE for the period of 11/1/2010 - 5/13/2011?

 

 

Expert:  socrateaser replied 5 years ago.
It's not up to you to try to figure out in advance whether or not your agreement is legal. That's DLSE's problem. File the claim and see what happens. If DLSE determines you are an employee then it will try to collect for you. Otherwise, you will remain an independent contractor, and you won't be able to speed up payments.

Hope this helps.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!


Customer: replied 5 years ago.
Thank you. I've been doing this during last 12 years. I always get paid at the latest within 30 - 35 days. As you see above, this staffing agency gradually pay late. Now it is paid after 90 days. It was pain for me. Othewise I would not ask these questions. Do you think I should claim interest and penalty along with overtime?
Expert:  socrateaser replied 5 years ago.
You keep asking me what you should do. I am prohibited from advising you as to what you should or should not do, I "justanswer" questions about the law.

You can ask for interest and penalties, and if DLSE thinks you're entitled to them, then it will support your claim.

Hope this helps.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!

socrateaser and other California Employment Law Specialists are ready to help you