My employer didn’t pay me on payday.

Yes, it is illegal to pay workers late. When an employer didn’t pay a worker on payday, the employee can sue and the employer has to pay waiting time penalty in the amount of 10 days’ wages.

Author: Brad Nakase, Attorney

Email  |  Call (888) 600-8654

Yes, it is illegal to not pay employees on payday. Federal labor laws and California employment laws are very protective of employee’s right to pay on payday. The rationale and public policy behind payday laws are to ensure employees are able to pay their living expenses and bills on time.  An employer not paying or late paying employees will probably result in penalties, interest, attorney’s fee, and court costs. Paying your employees late and could result in interest, penalties, and legal fees. An employee who was paid late or not paid has a claim to file a lawsuit against the employer for not paying an employee on payday. Since 2006, attorney Brad Nakase has help his hundreds of clients involving employers not paying employees on payday. Please call for a confidential and free consultation.

In this article, our employment attorney will discuss the following:

1. Federal Law Regarding Late Payment of Wages
2. State Laws Regarding Paydays
3. What can I do when my employer didn’t pay me on payday?

Federal Law Regarding Late Payment of Wages

The Fair Labor Standards Act was created to protect laborers. All employers must meet the minimum requirements of the FLSA and any state employment laws which supersede it. Employers must pay their employees promptly, meaning on the next payday after the pay period in which the hours were worked. The employee must be paid for all hours worked during that pay period, including overtime.

A late payment to an employee is considered the same as a non-payment and will attract the same penalties. The degree of penalty will depend on if the non-payment was willful.

A willful non-payment means that the employer knew they had failed or was going to fail to pay their employees on payday. A willful non-payment attracts an additional penalty called liquidated damages. The employer must pay liquidated damages totalling the unpaid wages and interest. The penalty is steep to discourage employers from withholding pay.

If your company had or is having cash flow problems and you pay your employees a week late, the payment is willful as you were aware you would not be able to make wage payments on time.

Non-payment or late payments will automatically be considered willful, and the employer has the burden of proof to show that it wasn’t. If the court rules that the non-payment wasn’t willful, then the employer will only need to pay the owed paycheck. If it was a late payment, this should already have been paid, and no further action is necessary.

Late payments that may be determined as not willful will be outside of the employer’s control, such as bank errors, or the employer being taken suddenly ill on payday.

State Laws Regarding Paydays

The state and industry you do business in will determine the frequency you pay your employees. For example, California employers must pay you on time or face penalties. When an employer didn’t pay a worker on payday, the employee can require the employers to pay a penalty of $100 for an initial violation.

An employer is required to pay an employee on one of the following pay frequencies:

  • Weekly
  • Bi-weekly
  • Semi-monthly
  • Monthly


Weekly and monthly frequencies are self-explanatory, but bi-weekly is every two weeks, and semi-monthly is twice per month.

Some states can have complex payday laws. For example, Arizona has a semi-monthly payday law but stipulates that there can’t be more than 16 days between paydays.

Occupations may have different pay frequencies in state law. In New York, for example, manual workers are paid weekly, but all other workers are paid semi-monthly. Some states may allow the employer to choose between two pay frequencies. Be sure to check the state’s payday laws so that you are operating legally.

What can I do when my employer didn’t pay me on payday?

An employee can file a complaint with the Department of Labor in their state, or a complaint with the California Division of Labor Standards Enforcement.  If the regular payday for the last pay period an employee worked has passed and the employee has not been paid, contact the Department of Labor’s Wage and Hour Division or the state labor department.

An employee must generally follow a procedure when looking to file a late wage claim. First, the employee must contact you about late payment and give you a chance to resolve the situation. It is in your best interest to resolve the situation swiftly to avoid legal action. If you fail to resolve the situation, or the employee feels you may owe them damages as well (such as covering late payment fees for their bills), then they can contact the labor board to file a claim or go to small claims court.

An employee will usually try and let you resolve the situation first before seeking legal action. A claim or court case will cost you both money and time, which can be easily avoided. It is recommended to take the opportunity to rectify the issue before penalties and interest are required by the court.

A one-off late payment, if rectified will be unlikely to result in a lawsuit. However, claims and lawsuits must be avoided at all costs. Most employees will only file lawsuits if they are repeatedly paid late, or they are not paid what they are owed when they bring it to your attention.

Have a quick question? We answered nearly 2000 FAQs.

See all blogs: Business | Corporate | Employment Law

Most recent blogs:

What is paid time off?

Paid time off - also known as personal time off - is when an employee takes off work while still getting paid by the employer. Likewise, personal time off is when an employee gets paid or unpaid while away from work.

What does an employment lawyer do?

An employment lawyer help employers and employees understand their respective rights and obligations, such as wages, wrongful termination, overtime, PTO, disability, discrimination, harassment, etc.

13 Wrongful Termination Examples

Employees wins millions of dollars in wrongful termination lawsuits against their employers. If an employee has been dismissed for the reason that is deemed illegal in California, then they may be able to sue their former employer for wrongful termination.

How do I know if I am exempt from overtime pay?

As of 2023, to be exempt from overtime pay, you must make at least $62,400.00 per year or $5166.66 per month. To be classified as an exempt employee, your salary must be at least twice California's minimum wage for full-time employment. 

Women’s Rights When Experiencing Sexual Harassment at Work

Title VII of the Civil Rights Act of 1964 (“Title VII”) makes it illegal for employers to allow anyone to be sexually harassed at work by anyone else, regardless of sexual orientation, gender, or sex. Women who experience sexual harassment at work may experience a range of negative consequences, including mental and physical health problems, lower earnings, and career interruptions.

How to respond to a notice of PAGA lawsuit?

5 steps to defend a PAGA lawsuit: 1) contact a PAGA lawyer after getting a PAGA Notice, 2) locate the arbitration agreement, if any, 3) determine if the safe harbor provision of the PAGA state applies, 4) compile a list of all employees that were similarly situated, 5) Collect the employee's manual.

What happens if you get an EDD audit?

An EDD audit is a process of verification that you have correctly withheld and reported personal income tax for wages paid to your employees. If you get an EDD audit, you may be liable for a wide range of fines, interest, and penalties on taxes that you owe.

What are the 4 Caregiver rights in California?

California caregivers are entitled to rest breaks, meal breaks, minimum wage, overtime pay for working over 8 hours per day, and double time for working over 12 hours, including overnight stays. Employers often face lawsuits from caregivers for violating caregivers’ rights, such as basic wages.

Terminating Employee with Cancer

Cancer is protected under the Disability Act, which protects an employee from retaliation and discrimination because of health impairment related to a cancer diagnosis. An employer cannot discriminate against an employee upon discovering that an employee has a severe illness or cancer.

Can I be fired for work restrictions?

No, you cannot be fired for work restriction if it is based on disability. However, an employer can fire an employee in some situations if the employee has work restrictions.

Annualized Compensation

An annualized compensation is to a predetermined gross pay per month paid to an employee for twelves months, totaling an estimated annual income.  In other words, annualized compensation - also known as annualized salary - is an estimate of how much pay an employee will earn over the course of a year if they were to work the full year. For example, teachers commonly do not work summer months and therefore need to annualized their salary for reporting taxes.

Is it illegal to pay my employees late?

Yes, it is illegal to pay workers late. When an employer didn't pay a worker on payday, the employee can sue and the employer has to pay waiting time penalty in the amount of 10 days' wages.

What is prevailing wage in California?

Prevailing wage in California is the minimum hourly rate employees earn on public work project. All workers employed on public works projects must be paid the prevailing wage. Our prevailing wage lawyer can protect your rights if you're not paid the California prevailing wage.

What qualifies as wrongful termination?

A termination is wrongful if the employer fires or laid off the employee on the employee based on a protected class such as sex, gender, race, ethnicity, religion, or age.

At Will Employment

At will employment means that the employer or the worker may end the employment relationship at any time. When an employment is at will, the employer can terminate employees for no reason.

Can You Get Fired for Looking for Another Job?

Firing an employee for looking for another job is legal under California Labor Code § 2922. Employees in California are employed on an “at-will” which means the employee or employer can terminate the working relationship at any time for any reason.

Can an employee be terminated while on medical leave?

It depends on the reason the employee is on medical leave. Under the FMLA, an employee cannot be terminated simply because they take leave. An employee is free to take medical leave without fear of losing their job. However, if there is a reason unrelated to the medical leave, an employer does have the right to terminate an employee.

Can Slack Admins Read DMs?

Yes. Slack admin and employer can read every DMs, private channels, private messages sent between team members. Employers on either Slack's free tier or paid tier need to submit a request to Slack before they can access your private chats.

Four Hour Minimum Pay

Yes - under California employment law, when an employee is scheduled to work an eight-hour shift, and the work is canceled, the employer must pay a minimum of four hours.

How far back do PAGA claims go?

A PAGA claim is generally one year from the date of the last employment law violation on which the PAGA claim is based.

FICA Withholding: What is FICA tax on my paycheck?

What is FICA tax on my paycheck? FICA is a federal wage tax. FICA taxes requires withholding from an employee’s gross earnings: 6.2% for social security and 1.45% for Medicare. The employer matches these percentages for a total of 15.3%.

Why Does EDD Do a Benefit Audit?

The EDD conducts benefit audits to help pay Unemployment Insurance benefits to only eligible claimants only, prevents fraud in the UI program, and helps companies control UI costs. The EDD’s responsibility is to collect payroll taxes and conduct payroll audits of businesses.

What Does PAGA Mean in a Lawsuit?

The word PAGA is an acronym for the Private Attorney General Act, which is the Labor Code that authorizes employees to file a lawsuit to recover civil penalties for themselves and other employees. PAGA confers a private right of action to individuals to prosecute under PAGA and incentivizes the employee to keep 25% of collected civil penalties.

Can my employer call my doctor?

Generally, yes, your employer can call your doctor; however, the questions your employer ask is limited and protected by HIPAA Privacy Law. Your employer has the right to contact your doctor to verify the authenticity of a doctor’s note but cannot ask about your medical condition or diagnosis.

What Qualifies as an EEOC Complaint?

The EEOC is a federal agency that investigates workplace discrimination and harassment based on race, gender, ethnicity, national origin, age, religion, medical status, and disability. There are time limits for filing a complaint with the EEOC.

EEOC Complaint Process

Before filing an EEOC complaint, employees should understand the entire EEOC complaint process. This article answers many Frequently Asked Questions on the EEOC complaint process.

Do guys get paid paternity leave?

A father is eligible for paternity leave if three conditions are met: 1) welcome a new child within the first twelve months; 2) Paid into the State Disability Insurance; 3) Has not taken more than eight weeks of paternity leave in the past twelve months.

California PTO Payout Law

California law declares vacation time to be earned wages, and vacation time is accumulated as work is performed. So, an employee who has the right to ten days of vacation per year will after six months of work earn five days of vacation time.

Contact our attorney.

Please tell us your story:

2 + 1 = ?