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.

By Brad Nakase, Attorney

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Have a quick question? I answered nearly 1500 FAQs.

Introduction

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.

Steps to Take to Address Late Wage Payments

Employees facing late wage payments should take the following steps to address their concerns:

  1. Contact the company’s HR or payroll department to address late wage concerns. Payroll processing errors or administrative oversights may be the cause. These issues generally resolve without much trouble.
  2. Document your work time and pay schedule to provide evidence of negligence.
  3. Seek advice from an experienced California employment law attorney, especially if late payments have caused financial hardships. A California attorney understands the laws and can guide you in recovering your wages.
  4. File a complaint with the California Labor Commissioner’s Office. An investigation will determine if an employer has broken labor laws.
  5. File a lawsuit to collect wages, penalty pay, and legal representation costs.

Federal Law Regarding Late Payment of Wages

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

A late payment to an employee is considered the same as non-payment and attracts the same penalties. The degree of penalty depends 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 totaling the unpaid wages and interest. The penalty is steep to discourage employers from withholding pay.

If a company had or is having cash flow problems and pays employees a week late, the payment is willful as they were aware they 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, the employer only needs to pay the owed paycheck. If it was a late payment, it should already have been paid, and no further action is necessary.

Late payments 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.

California 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 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 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 the employer about the late payment and give them a chance to resolve the situation. It is in the employer’s best interest to resolve the situation swiftly to avoid legal action. If the employer fails to resolve the situation, or the employee feels they may owe them damages (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 to let the employer resolve the situation first before seeking legal action. A claim or court case will cost both parties money and time, which can be easily avoided. It is recommended 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 are not paid what they are owed when they bring it to the employer’s attention.

Filing a Claim With the California Labor Commissioner’s Office

First, employees can file a claim with the California Labor Commissioner’s Office to recover unpaid wages. Employees can seek assistance for employers willfully failing to pay wages. Winning a case may entitle the employee to compensation for attorney and court fees.

Withholding earnings may entitle an employee to penalty fees paid by the employer for each day the payment is late, up to 30 days. Employers must pay employees twice a month or on specified paydays. Labor Code violations can be addressed with the Human Resources (HR) department when discussing these issues.

Filing a Lawsuit Against an Employer for Late Wage Payments

If an employer consistently or intentionally fails to pay on time, filing an unpaid wages lawsuit may be the next step. Employees have the legal right to timely payment and can pursue legal action when state laws are broken. The burden of proof rests with the employee to document the employer’s violations. Seeking legal assistance from Nakase Law Firm can help build your case, settle the claim, or take the case to court if necessary.

Failing to pay overtime or wages owed at termination is subject to the same penalties as any unpaid wage. Documented employment records and contracts create a link to the compensation owed.

The Purpose of Penalty Pay

Employers who knowingly fail to pay employees on time or fail to pay other owed wages are subject to penalty pay. Penalty pay encourages employers to follow wage and hour labor laws. These penalties may also apply when employers fail to provide wage statements or notify workers of their rights.

Penalties vary depending on the law and offense. Employees expect and are legally guaranteed timely pay for their work. An employer’s failure to comply with wage laws is subject to penalties and legal action in California.

Conclusion

California law mandates timely wage payments, and penalties apply for late payments. Employees have legal avenues to recover unpaid wages and should document any violations.

Have a quick question? We answered nearly 2000 FAQs.

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