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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
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Experience:  Significant experience in all areas of employment law.
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On July 19th, I gave my two week notice that I would be resigning.

Resolved Question:

On July 19th, I gave my two week notice that I would be resigning. My previous employer waited until July 23 to let me know that my last day of work was July 19th. I did not receive my final pay until July 29th. Can I file a wage claim with the state for the 7 days. If so, is it considered a termination or a resignation?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 1 year ago.
Good morning and thank you for entrusting me to answer your question. I will do everything I can to assist you.

An employee is entitled to payment of his or her final wages immediately upon termination. (Labor Code 201) Failure to immediately pay a departing employee's final wages will typically result in the assessment of a penalty in the amount of the employee's daily rate of pay for each day the wages go unpaid up to 30 days.

So for example, if an employee who makes $100 a day is terminated on on the first of the month but not paid his final wages until the 20th, he would be entitled to a $2,000 penalty from his employer in addition to the earned wages.

Since your last day of employment was the 19th, you would be entitled to penalties for each day up to the 29th. That claim can be pursued through the Department of Labor Standards Enforcement at no cost to you. To file a wage claim with the DLSE, visit this link: http://www.dir.ca.gov/dlse/howtofilewageclaim.htm

With regard to termination or resignation, it is clear that your separation of employment was still a resignation, as you were the party that initiated the break.

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, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes to you and thank you so much for coming to Just Answer.
Customer: replied 1 year ago.

Thank you for responding so quickly. When I spoke with a DLSE contact, she said I should consider it a termination for the claim form since he essentially terminated me on the 23rd. If it is considered a resignation, how many days would I be entitled to?

Expert:  Patrick, Esq. replied 1 year ago.
I see what your are saying. Please let me amend my response.

For the purpose of what you can tell prospective employers, you can tell them you resigned, and your former employer shoudl represent the same. For the purpose of determining the obligation to pay final wages, you would treat it as a termination, since you were involuntarily released prior to the last day you had intended to work.

This distinction is important as you appear to be aware of for the purpose of calculating the penalties for late payment of final wages, since an employee who resigns is entitled to be paid by the later of either (1) their last day of employment or (2) 72 hours after giving notice.

In summary, while you are free to tell prospective employers you resigned, penalties for the nonpayment of final wages should be calculated based upon termination, since you were not permitted to work until the day you had offered as your last day. I hope that makes sense.

Again, please feel free to let me know if you have any further concerns. If I have answered your question, I would be very grateful for a positive rating of my service so that I may receive credit for assisting you.

Kindest regards.
Customer: replied 1 year ago.

Of course he had to make things complicated by not responding immediately to my resignation. Do I state that I was terminated on the 19th my last official working day or on Tuesday the 23rd the day he said he would not honor my two week notice.

Expert:  Patrick, Esq. replied 1 year ago.
The final date of employment is usually a "question of fact," meaning it is not always cut and dry and is subject to interpretation based on the unique facts of each circumstance. I'd argue you were terminated on the 19th if your employer has referred to that as your "last working day," as that indicates that in their mind you were no longer an employee after the 19th. It's a tough call, though.
Customer: replied 1 year ago.

Should I be conservative and say the 23rd in order to try to avoid having this throw out my claim. If I use the 23rd, I feel I should be paid for Monday the 22nd (he paid for the 15th through the 19th). Can I make a claim for the one day and request the waiting time penalties for the other days?

Expert:  Patrick, Esq. replied 1 year ago.
In order to simplify your claim you could do that, but the DLSE wouldn't through out your claim if there was a dispute as to your last working day, they'd just adjust the penalties based on what they found to be your last day.

To answer your question directly, though, you could present your claim in the manner you have described and that would be fine.

Please let me know if I can be of any further help.
Customer: replied 1 year ago.

Thank you so much for your insight. One last thing. On the DLSE form itself, the business is based in Washington, but I was a Regional Sales Manager in California on line 17 (Part 3 of the claim form) should I list my home address as the address I worked from. There are no physical locations for my previous employer in California.


 


Thanks!

Expert:  Patrick, Esq. replied 1 year ago.
If you were working from CA and there is no physical CA office location for this company, then yes, you should typically list your home address.

I hope this helps and good luck! Please don't forget to rate my service if you do not have any further questions.

Best wishes.
Patrick, Esq., Lawyer
Satisfied Customers: 7650
Experience: Significant experience in all areas of employment law.
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Patrick, Esq.
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