![]() Am I entitled to the waiting time penalty? I purposely did not pickup my check until 10 days later, which was 13 days after I quit. He informed me that my check was available and that I could come in and pick it up, and I told him I would do so. I did not receive my final paycheck on that day, and on the following Monday called my former employer to find out when I would be paid. Seven days ago I gave my employer notice that I was quitting on Friday, which I did. Note: If the answer to any of the questions below states that the employee is entitled to the waiting time penalty, it is assumed that all of the conditions for imposition of the penalty exist and there is no good faith dispute that any wages are due. The waiting time penalty is not wages, thus, no deductions are taken from the penalty payment. An employee's filing a claim with the Division of Labor Standards Enforcement (DLSE) is not considered the filing of an action, and does not stop the penalty from accruing. Filing a complaint in court commences an action. Payment of the wages or the commencement of an action stops the penalty from accruing. The 30-day period is calendar days, and includes weekends and holidays and any other days that the employee would not normally work. This does not mean that the wages continue for a 30-day period, but that the employee may be entitled to up to 30 actual days' worth of wages. The penalty is measured at the employee's daily rate of pay and is calculated by multiplying the daily wage by the number of days that the employee was not paid, up to a maximum of 30 days. Occasional or infrequent overtime is not considered in the calculation of the daily rate of pay for purposes of computing the penalty. In calculating the penalty, overtime wages are considered only if overtime is regularly scheduled each week. Thus, all compensation must be considered in determining if all wages due were paid as prescribed by law. The penalty applies to the willful failure to pay "any wages," which refers to the definition of " wages" in Labor Code Section 200. In order for the penalty to apply, there must be a true employer-employee relationship and a quit or a discharge, which includes a layoff. Assessment of the waiting time penalty does not require that the employer intended the action or anything blameworthy, but rather that the employer knows what he is doing, that the action occurred and is within the employer's control, and that the employer fails to perform a required act.Īssessment of the penalty is not automatic however, as a " good faith dispute" that any wages are due will prevent imposition of the penalty. To ensure that employers comply with the laws governing the payment of wages when an employment relationship ends, the Legislature enacted Labor Code Section 203 which provides for the assessment of a penalty against the employer when there is a willful failure to pay wages due the employee at conclusion of the employment relationship. Public policy in California has long favored the full and prompt payment of wages due an employee. ![]()
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