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LawTalk
LawTalk, Attorney
Category: California Employment Law
Satisfied Customers: 28001
Experience:  I have 30 years of experience in the practice of law, including employment law and discrimination law.
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Doug, My company is going to pay me the overtime they owe

Resolved Question:

Doug,

My company is going to pay me the overtime they owe me for the past 3 years, however they are not going to pay the liqudated damages as they interpret the law to say 'willful" nonpayment. They think since they found the mistake and are correcting it, it was not "willful" and don't think they they owe me the money.

They have stated they are putting the overtime pay in my next paycheck. I have informed them I will still be pursing the liquidated dames claim.

Is the claim a waste of time? What does "willful" mean in the eyes of the law?
Submitted: 2 years ago.
Category: California Employment Law
Expert:  LawTalk replied 2 years ago.
Good morning,

An honest mistake in accounting will not be considered willful. However, plain old ignorance of the law as to what they legally were obligated to pay you is not likely to be seen as anything but willful.

Interesting that they are agreeable to pay you 3 years of back pay---because unless the underpayment was willful they would only have to pay for up to the last 2 years.

The issue with the liquidated damages means that you must get that judgment in court. Now, if they want to pay you the back pay and force you to sue for the liquidated damages---you may---and I just don;t see a good defense to it with the sole claim that they didn't know how much to pay you---this is a minimum wage, just like all other minimum wages---the employer is charged with knowing what those minimums are---and I believe you will win in court if you do sue.

A willful failure to pay wages occurs when an employer intentionally fails to pay wages to an employee when those wages are due. The failure to even consider minimum wage may be consider willful.

You may reply back to me using the Continue the Conversation or Reply to Expert link if you have additional questions; and if you do, I ask that you please keep in mind that I do not know what you may already know or with what you need help, unless you tell me.

Kindly take a moment to rate my service to you highly, based on the understanding of the law I provided. Please understand that I have no control over the how the law impacts your particular situation, and I trust you agree that it would be unfair for me to be punished by a (negative rating) ----the first 2 stars/faces----for having been honest with you about the law.

I wish you the best in 2012,

Doug

LawTalk, Attorney
Satisfied Customers: 28001
Experience: I have 30 years of experience in the practice of law, including employment law and discrimination law.
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