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socrateaser
socrateaser, Lawyer
Category: Employment Law
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Experience:  Retired (mostly)
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I was an employee of a California company and was working in

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I was an employee of a California company and was working in China for 2.5 years.
The company sold off the part of the company that I was working for and told me my last day would be my scheduled return date to the US of 11/03/12.

When I returned home they did not pay my final amount due saying they didn't have the money and would make payments to me.

They actually owed me $30,000 because they had stopped paying me my housing allowance almost a year earlier, had not paid me a bonus that was about $5,000, and had underpaid me a total of $10,000 in salary for the last year that I was in China.

They have paid all but around $7,000 and are still dragging their feet saying their customers paying them are slow.

First I need to know if I need to take them to court to get action or if their is a California labor organization that can enforce the non-payment issue.
If I take them to court what could I reasonably expect to ask for in penalties and interest, etc.

I realize there is a waiting time penalty that is a maximum of 30 days pay, but what other things could be added?

If I demand the 30 days waiting time penalty, how is it enforced, by lawsuit or California Labor Board?
Submitted: 1 year ago.
Category: Employment Law
Expert:  socrateaser replied 1 year ago.
Hello,

There are several issues involved here. There is a question of jurisdiction, concerning a wage claim by an employee employed primarily outside of California. In general, the law of the jurisdiction in which the employee is employed would govern the case. This could make resolution of the case in a California court extremely difficult.

However, were I representing you, I would bring the lawsuit in California, regardless of the jurisdictional issue, because since the employer is located in California, the employee can sue in California. And, since neither employer nor employee are likely to be savvy in the employment laws of China, it's likely that everyone would agree to use California law to determine the case outcome.

Assuming that the above-described agreement occurs, then you can bring a complaint via the Division of Labor Standards Enforcement (DLSE). The DLSE will examine your claim and try to get the employer to sign a settlement agreement. If no, then a hearing will be set, and your case will be heard by an administrative law judge (ALJ) in what is called a Berman hearing. If the outcome does not suit you or the employer, then you can appeal the case to the Superior Court, and the court will reconsider the matter as if it were never heard by the ALJ. But, before that happens, if the employer has lost, it will be required to post a bond in the amount of the unpaid wages determined by the ALJ. This frequently dissuades the employer from challenging the Labor Commissioner/DLSE ruling.

The other alternative is to skip the DLSE route and sue in Superior Court directly. You will almost certainly need a lawyer to handle this sort of case, regardless of the route chosen. However, if it were me, I would start with the DLSE and see if it will take the case, because having the government on your side, usually results in a quicker resolution.

Should you decide you would like to hire legal representation, then for an employment rights lawyer referral, see this link.

Please let me know if I can clarify or otherwise assist you further.
Customer: replied 1 year ago.

If I take them to court what could I reasonably expect to ask for in penalties and interest, etc.

I realize there is a waiting time penalty that is a maximum of 30 days pay, but what other things could be added? Interest, penalties, fees,etc?


 


If a lawsuit is the answer what are the chances of winning, and general costs might be, and would they be responsible for the attorney and court fees?


 


If they underpaid me $10,000 over a year and didn't pay my housing for over a year and I have e-mails from the CFO/comptroller stating that they do agree they owe the money, isn't it a fairly open and closed case?


 


Do the courts tend to side with the employee or employer?


Is their saying they just didn't have the money to pay me and are making payments an acceptable out for them?

Expert:  socrateaser replied 1 year ago.

If I take them to court what could I reasonably expect to ask for in penalties and interest, etc.

 

I realize there is a waiting time penalty that is a maximum of 30 days pay, but what other things could be added? Interest, penalties, fees,etc?


A: In employment cases, contract damages include salary, bonus, overtime pay, sick leave, life insurance, medical and dental insurance, pension and retirement benefits, etc. There may also be noncash perquisites and benefits to consider: automobiles, dependent care, vacation facilities, country club dues, etc.

 

Statutory damages where the employer has failed to pay minimum wage permit double damages for the amount under minimum wage not paid timely. However, this begs the question of whether or not you can impose the California minimum wage on the employer while at work in China. I believe that this claim would be rejected by a court, since you are not subject to either state or federal minimum wage law -- unless you can show a written contract under which the employer and employee agreed to subject themselves to California law (which does happen, so read your contract, if you have one).

 

If a lawsuit is the answer what are the chances of winning, and general costs might be, and would they be responsible for the attorney and court fees?

 

A: For unpaid wages, and any expenses the chances are 100% -- assuming that you can prove the agreement, hopefully via a written contract. For anything above that, it depends on whether or not you have agreed in writing to submit to California law. If you have, then you could get attorney's fees. Otherwise, you may not be able to recover anything other than the amount of unpaid wages and expenses.

 

If they underpaid me $10,000 over a year and didn't pay my housing for over a year and I have e-mails from the CFO/comptroller stating that they do agree they owe the money, isn't it a fairly open and closed case?

A: Nothing is open and shut in a courtroom. However, assuming that you can prove that the emails actually came from the employer, then I would say that an admission in the emails would be extremely damaging evidence in your favor.

Do the courts tend to side with the employee or employer?

 

A: Courts don't tend to side one way or the other, except in cases where the employee is a minimum wage worker. When it's obvious that the employee is naive and has been taken advantage of, the court's tenor changes. But, whether the employee is educated and well compensated, the court is objective.

 

Is their saying they just didn't have the money to pay me and are making payments an acceptable out for them?

A: No, it's absurd. However, if the employer is really insolvent, then your lawsuit could potentially cause a bankruptcy filing -- in which case you have a priority claim for $11,725 in wages. But, if the money isn't there, then you won't collect. So, the real question is whether or not they're jerking your chain or telling you the truth. I have no means of determining credibility here. I'm generally disposed to not believe employers -- so I suspect they have the money. But, that's just my speculation -- you may have more credible information available from inside the business via coworkers.

Hope this helps.
Customer: replied 1 year ago.

Thank you for your answers.


While I was working in China I was employed by and paid by the California Company. I had worked for them since 2008 in California, but moved my address to Texas while I was in China.


 


I am curious where the $11,725 in wages number came from.


 


The amount they owed me excluding a $5,000 bonus was $30,000 for unpaid salary and unpaid housing.


 


They have thus far paid me $29,000 but still owe me $6,000 not counting the waiting time penalty.

Expert:  socrateaser replied 1 year ago.

Bankr. Code 507(a)(4) provides the maximum prepetition wage recovery in the event that the employer files bankruptcy. The amount in the statute is adjusted for inflation every three years. See 78 FR 12089 (Revision of Certain Dollar Amounts in the Bankruptcy Code Prescribed Under Section 104(A) of the Code).

 

Actually, I notice that the amount has been increased to $12,425, as of 3/31/2013.

Hope this helps.

socrateaser, Lawyer
Category: Employment Law
Satisfied Customers: 34117
Experience: Retired (mostly)
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