How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Brandon, Esq. Your Own Question

Brandon, Esq.
Brandon, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 1824
Experience:  Has received a certificate of recognition from the California State Senate for his outstanding legal service.
69271599
Type Your California Employment Law Question Here...
Brandon, Esq. is online now
A new question is answered every 9 seconds

Hello, My question is regarding my employee rights according

Resolved Question:

Hello,

My question is regarding my employee rights according to labor/compensation law in California for salaried (exempt) employees:
I submitted a voluntary resignation letter to my employer on December 14th, 2012 with effective date of December 28th, 2012 (2 weeks notice). I was an employee in good standing with no special circumstances (no loans, outstanding dues, etc). On my last day (12/28/2012), they notified me during my exit interview that they did not have my final paycheck ready due to the fact that our company had been undergoing an integration process (we were acquired almost two years prior so they were still undergoing a massive integration for HR/payroll systems to the new company's platform). Apparently this was causing some delays for them in processing my final paycheck. They notified me that they should have my paycheck in a few days so to make up for the delay, they will add a few extra days' pay to my paycheck. Also, I reminded them that they should include pay for any unused vacation time that I had accrued and they confirmed that if there was any eligible vacation time, they would include that in my pay as well. FYI - I took a screenshot of my PTO time accrued as captured on my HR portal before leaving to prove that I did indeed have unused vacation pay.

On January 10th, 2013 I received a direct deposit to my bank account. However, this amount deposited did not seem to add up to my expectations based on how much time off I had accrued and the extra pay for check delays. After a series of failed attempts to get in touch with my HR rep (she answered the first e-mail but then ignored the next two) I finally got a hold of the new acquiring company's HR/payroll dept and inquired about getting an itemization for this last paycheck so I could determine what this lump sum was for. They eventually produced one and it didn't show anything about bonus delay pay or vacation pay. So I contacted the payroll dept again on February 8, 2013 to dispute/report it and they confirmed that they did in fact overlook my vacation pay. They indicated that they would investigate and that someone would follow up to resolve the matter. Although I have not disclosed the company name, please know that they are a Fortune 500 company with a global presence so we're not dealing with a small fly by night operation. This is a major financial institution with substantial organizational resources.

Given that the company claimed it was an oversight on their part...does the above situation qualify me for pursuing penalty pay for up to 31 days due to my vacation payout not being paid out on time? I'm trying to understand how much of a factor their willingness to admit fault (oversight) has on the strength of my claim against them. I'm confident that if I never reported it to them, they never would have caught the missed vacation pay. And while they claim it was an oversight, whose to say it wasn't intentional? I've already asked one expert on JustAnswer and while they claimed I had a case, further researched on my part made me uncover this stipulation about whether pay was willfully withheld or not. I would consider my calling them to report the case as the good faith attempt to resolve and once notified, they did correct it...but it was one month later that they corrected the problem that I had to notify them of.
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Brandon, Esq. replied 1 year ago.

Hello and thank you for your question.

First, let me reiterate that you are entitled to your vacation pay. For the purposes of your research, I wanted to provide a link to this information directly from the California DLSE website. This link can be found here:

http://www.dir.ca.gov/dlse/faq_vacation.htm

In direct response to your question, Labor Code Section 203 provides for the assessment of a penalty against an employer for failure to pay wages owed when there is a "willful failure to pay wages" at the end of the employment relationship. The waiting time penalty does not require that an employer intended to do something blameworthy, only that the employer knew that it was owed, failed to pay it, and that failure was within the employer's control. In your case, what the employer did is willful under the law. Had they sent a check and it never got to you, that may not be deemed willful. They were aware you were owed vacation pay and they failed to pay it. Their stupidity is not a defense. You are thinking about willful in terms of what it means in the general every day since. The legal definition of it is far less forgiving.

The only way that the penalty would not be assessed if you were to file a wage claim would be if there was a "good faith dispute" over the amount actually owed. That does not appear to be the case here.

Finally, the penalty is measured at your daily rate of pay and is calculated by multiplying your daily wage by the number of days that you were not paid, up to a maximum of 30 days, not 31.

Hopefully this clears up the confusion. Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for assisting you.

Brandon, Esq., Lawyer
Satisfied Customers: 1824
Experience: Has received a certificate of recognition from the California State Senate for his outstanding legal service.
Brandon, Esq. and other California Employment Law Specialists are ready to help you
Customer: replied 1 year ago.
BTW - They sent me the vacation pay two days later via registered mail. That said, it was 30 days later than my resignation date. So based on my scenario, you are confident I have a case and should win? What is the best way to proceed? File a claim withe labor board? What is your confidence level I have a solid case?
Expert:  Brandon, Esq. replied 1 year ago.
First, as to how to proceed, you would file a claim with the DLSE for unpaid wages or bring an action in court against your former employer to recover the amount. You can file a claim with the DLSE here:

http://www.dir.ca.gov/dlse/howtofilewageclaim.htm

As for winning, you are entitled to the waiting time penalty in the amount of all days between when you said you were going to resign, and when you actually got paid up to a maximum of 30 days. As your employer is obligated to pay you all of your unapid wages at the time of quitting, there is a very high likelihood of prevailing.

The only reason you would not prevail is if 1) there was a good faith dispute as to how much you were actually owed, or 2) the money was available for you to pick up and you purposely avoided picking up your check after you were informed it was available to you. (Labor code section 203)

As for my confidence level, from the facts presented, it sounds like you have a very good case, and they have no legitimate defense. If you have any further questions concerning this, you can either ask me directly, or go to the following link from the DLSE which lays all of this out for you.

http://www.dir.ca.gov/dlse/faq_waitingtimepenalty.htm

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for assisting you.

Have a wonderful rest of your day!
Expert:  Brandon, Esq. replied 1 year ago.

I wanted to write to check up to see if you had any additional questions or concerns concerning your question. If you do have additional questions or need additional clarification please do not hesitate to ask. Please remember that I do not know what you may already know or with that you need help with unless you tell me. If you have not provided a positive rating because you would like a different expert to answer your question, please ask and I will opt out of the question so that another expert may answer. If, however, you found the information helpful to you, please do not forget to provide me with a positive rating by clicking on one of the happy faces, or I will not receive any credit for my time in trying to assist you. Please keep in mind that even after a rating has been issued you can continue to ask questions related to the original post and I will be happy to answer them. If for some reason the rating feature is not working or you cannot find it, please write me back and let me know. Please remember that when you are asked to give a rating, you are rating My Service and not this website itself or the law as it applies to your case. I wish you all the best in 2013.

Customer: replied 1 year ago.
Thank you for following up, I appreciate it. You wrote: "The only reason you would not prevail is if 1) there was a good faith dispute as to how much you were actually owed, or 2) the money was available for you to pick up and you purposely avoided picking up your check after you were informed it was available to you. (Labor code section 203)"

Regarding #1) I am not disputing the amount. I simply notified my former employer that I was owed vacation pay as of 12/28/12 and while they did pay me for my last week of hours work, I am still awaiting unused vacation payment as of 2/8/13. They looked into it and confirmed they did, in fact, not pay it out due to oversight and that they will take care of it right away. I received the check for vacation pay 2 days after I called (2/10/2013) via registered mail. However, considering I resigned on December 28th, 2012 and the check for my vacation pay arrived Feb 8th, 2013, I'm trying to identify whether I have a valid case around penalty pay so I can proceed with confidence with the DLSE. Regarding point #2, it doesn't apply because by the time they mailed me the check for vacation pay, we were well past 30 and it came via mail.

The big concern is around whether oversight on my former employer's part will be viewed upon as "willful intent" by the courts. I downloaded the form from the link you provided and if you confirm that this is truly a valid case eligible for penalty pay, I will bring the form in person to my local DLSE office tomorrow morning.
Expert:  Brandon, Esq. replied 1 year ago.
Concerning willful intent, this would only apply if they had a legitimate reason to believe you were not owed this amount. "Oversight" does not constitute a good faith belief. For them to win, they have to show that there was some legitimate reason why they should not have believed you were owed your vacation time. As they were aware, or at least should have been aware of how much unpaid overtime you had, there is no reason I can see why they could make a legitimate argument as to why they should win. Whether or not it was an oversight, they were in possession of the information to know that they owed it, and they failed to pay it. Unless you can think of any reason why knowing how much vacation you had used was not within the employers control, you will prevail.

Here is a DLSE's page specifically mentioning various examples concerning the waiting time penalty:

http://www.dir.ca.gov/dlse/faq_waitingtimepenalty.htm

Please read the examples to see if there are any additional facts that you have not mentioned. From all the facts you have told me, however, you are entitled to the waiting time penalty.

Good Luck!
Expert:  Brandon, Esq. replied 1 year ago.

Have I fully answered your question? Or were you in need of additional information?

Expert:  Brandon, Esq. replied 1 year ago.

I just wanted to check in to see if you brought the form in and if everything got taken care of. If you have any additional questions or concerns concerning your question, please do not hesitate to ask. Additionally, if you would like me to opt out of this question, I would be happy to do so. If, however, you were completely satisfied with my service to you, please do not forget to provide a rating in the middle or above. Please remember that as a subscriber it costs you no additional money to provide a rating, but it is the only way that an expert may receive credit for trying to assist you.

Have a wonderful rest of your day.

Customer: replied 1 year ago.
Hello,

I was notified that I received a negative report for this question. Is there a reason why you did so? I was not finished reviewing your information and am still in the process of filling out the form. I was planning on providing a positive rating once I was done filling/filing the form and had no more questions. Please explain why the negative report. It indicates Reported: Underpriced.
Expert:  Brandon, Esq. replied 1 year ago.
You actually recieved that report before I ever saw the question. Another expert previously saw your question and believed that the minimal amount we receive for getting an accept on this question was not enough due to the complexity of the answer. That bad report has nothing to do with me. I did not give it to you. Because of the nature of it, you can completely ignore it as I have already answered your question.

That being said, please keep in mind that as a subscriber it costs nothing additional for you to give as many accepts or ask as many questions as you would like. However, as an expert, I receive compensation for each accept you choose to give. So, while you definitely do not have to accept any of the answers I have provided, it would be greatly appreciated. Keep in mind that even after you provide a rating, you can continue to ask questions in this question thread and I will be happy to answer them for you.

I hope you are having a great day.
Customer: replied 1 year ago.
Thanks for the clarification. That's odd as I simply chose the level of detail and JustAnswer actually determines the value (not me). Whoever complained must not know the system very well. So if I offered to pay $54 for a question and I mark "Accept" on two of your responses, do I get charged $108? Sorry, I'm new and while I'd like to provide a positive rating, I wasn't sure if this would end our discussion if I clicked "Accept" today. Last time I asked an expert a question and marked "Accept" it wouldn't allow me to post any more questions to that thread.
Expert:  Brandon, Esq. replied 1 year ago.

I have never experienced that problem. Were you in live chat? According to my screen, you are a subscriber. This means that you could ask 1,000 questions and give 2,000 accepts and it would not cost you any additional money. I have had question threads with over 20 accepts in them before so I have no idea why you were stopped from asking additional questions. As to how you get charged, as a subscriber, every accept you give pays me a very minimal amount. If you were not a subscriber, then you would pay a flat fee to the website based on how quickly you wanted an answer, and how much detail you wanted in that answer. The website then places your question into a queue depending on how much you are willing to pay. If you are not a subscriber, then yes, you would pay the website that same amount per accept that you gave in that instance. If you are a subscriber, then your question goes to the top of the queue.

If you do click accept and cannnot ask additional questions, then you can always ask a follow-up here.

http://www.justanswer.com/law/expert-accident-expert/

Additionally, please tell me this has occured so that I can contact customer support to figure out what happened.

Most likely, what happened is that the website was updating, or processing something so it locked you out of posting a question for a few minutes. Sometimes, once I post something I am prohibited from posting anything else below it for 4-5 minutes before the website properly updates everything.

Customer: replied 1 year ago.
Hi, so I finally went to submit my wage claim form to the dept of labor and they tell me that since I cashed my vacation check, I cannot file a wage claim for waiting time penalties. Is this a legitimate reason to preclude me from filing a wage claim?

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
< Last | Next >
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C. Freshfield, Liverpool, UK
 
 
 

Meet The Experts:

 
 
 
  • LawTalk

    Attorney

    Satisfied Customers:

    933
    I have 30 years of experience in the practice of law, including employment law and discrimination law.
< Last | Next >
  • http://ww2.justanswer.com/uploads/LA/LawTalk/2012-6-6_17379_LawTalk.64x64.JPG LawTalk's Avatar

    LawTalk

    Attorney

    Satisfied Customers:

    933
    I have 30 years of experience in the practice of law, including employment law and discrimination law.
  • http://ww2.justanswer.com/uploads/MU/multistatelaw/2011-11-27_173951_Tinaglamourshotworkglow102011.64x64.jpg Tina's Avatar

    Tina

    Attorney

    Satisfied Customers:

    849
    JD, 16 years experience & recognized by ABA for excellence in employment law.
  • http://ww2.justanswer.com/uploads/PI/PIExpert/2012-7-1_152453_Attorney.64x64.jpg Brandon, Esq.'s Avatar

    Brandon, Esq.

    Lawyer

    Satisfied Customers:

    330
    Has received a certificate of recognition from the California State Senate for his outstanding legal service.
  • http://ww2.justanswer.com/uploads/PH/phoenixrising119/2012-7-26_11214_043.64x64.jpg melissamesq's Avatar

    melissamesq

    Attorney

    Satisfied Customers:

    47
    Represent clients to maximum recovery in employment cases.
  • http://ww2.justanswer.com/uploads/IG/Iggy1001/2013-11-20_23344_JApic.64x64.jpg Joseph's Avatar

    Joseph

    Lawyer

    Satisfied Customers:

    3443
    Extensive experience representing employees and management
  • http://ww2.justanswer.com/uploads/JK/jkiani22/2013-11-18_15348_JacobKiani1copy2.64x64.jpg jkiani22's Avatar

    jkiani22

    Attorney

    Satisfied Customers:

    24
    Attorney
  • /img/opt/shirt.png Legal Counsel's Avatar

    Legal Counsel

    Lawyer

    Satisfied Customers:

    32
    California Licensed Attorney- 29 years- Wages, Hours, Overtime, Discrimination, Wrongful Termination.