Orange County Employment Lawyer Blog

I cursorily discussed Labor Code Penalties in a previous post. However, as it applies to lunch breaks and rest breaks, recent California case law has significantly impacted these issues. In this post I will discuss in greater detail the current state of lunch break penalties and rest break penalties.

Clients frequently contact my Orange County Employment Law Firm inquiring about lunch break issues. The law states that if lunch breaks or rest breaks are not provided as required by California law, claimants are entitled to more than just the unpaid wage for working through the lunch or rest break, they are also entitled to one hour or pay for each workday that a lawful meal break or rest break was not provided.

However, California Courts have recently directed its focus on the differences between ensure and provide. Previously, employers had a duty to ensure that its employees were taking a duty free lunch (duty free means just that, not working. So, sitting at your desk and eating lunch while answering the phone occasionally when it rings is not duty free). Thus, if employers did not ensure an employee was taking a duty free lunch, they were subject to the above described penalty if an employee failed to take a duty free lunch.

Recent case law has altered the definition, changing an employer's duty from ensure its employees were taking a lunch to simply that they provide the employees with the opportunity to take a duty free lunch. Thus, if an employer has a policy that all employees take a duty free lunch, and an employee does not do so, the employer is not liable for any of the above damages if the employer does not know the employee failed to take a lunch. So, recent case law has taken much of the bite of lunch break penalties away from employees.

I previously discussed California's more common wage and hour penalties and their respective remedies in a previous Labor Code Penalties post. In this post, I will discuss in greater detail what is commonly referred to as an "Itemized Wage Statement Penalty" or IWS penalty.

While working for any employer, every employee must receive wage statements that are properly itemized, which means the pay stub must contain certain specific items of information, consisting of the following nine items:

• gross wages earned,


• total hours worked by the employee,


• the number of piece-rate units earned and any applicable piece rate if the employee is paid on a piece-rate basis,


• all deductions,


• net wages earned,


• the inclusive dates of the period for which the employee is paid,


• the name of the employee and the last four digits of his or her social security number,


• the name and address of the legal entity that is the employer, and


• all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee.

An employer's failure to provide pay check with stubs containing this information may be liable for an itemized wage statement penalty. Such a penalty results in a penalty of $50 for the first violation, $100 for each subsequent violation - up to $4000 per employee.

I summarily discussed Labor Code Penalties in a previous post describing several of California's more common wage and hour penalties and their respective remedies. Here, I will discuss in greater detail what is commonly referred to as a "waiting time penalty."

When potential clients contact my Orange County Employment Law Firm, they usually just want what they are owed (in the form of unpaid wages, unpaid overtime, etc.) However, most clients never knew that when an employee separates from an employer, whether by termination or resignation, he/she must be paid all wages that are owed at the time of separation. This is true both in the case of termination or resignation, but the time frame for each to be paid in full is slightly different.

If being fired, the employee is entitled to all wages owed at the time of his or her termination. If the employee is resigning, he or she must be paid all wages due within 72 hours of resigning. If all wages are not paid within these time constraints, the employee, in addition to being able to recover all wages he or she is owed, is also entitled to a waiting time penalty. California's waiting time penalty entitles the employee to receive up to 30 days of wages, which means just that - thirty days of wages, not one month's pay!

Most wage and hour matters in California provide remedies in addition to the actual unpaid wage or damage in the form of Labor Code penalties. I will describe some of the more common penalties below.

WAITING TIME PENALTY

When an employee separates from an employer, whether by termination or resignation, he/she must be paid all wages that are owed at the time of separation. If fired, the employee is entitled to all wages owed at the time of his or her termination. If resigning, he or she must be paid all wages due within 72 hours of resigning. If all wages are not paid within these time constraints, the employee, in addition to being able to recover all wages he or she is owed, is also entitled to a waiting time penalty. California's waiting time penalty entitles the employee to receive up to 30 days of wages, which means just that - thirty days of wages, not just one month's pay.

ITEMIZED WAGE STATEMENT PENALTY

While working for any employer, every employee must receive wage statements that are properly itemized, which means the pay stub must contain certain specific items of information, most commonly the employee's gross wages, net wages, total hours worked, commission rate, piece-rate, pay periods covered by the check, and all deductions withheld, among other items. An employer's failure to provide pay checks with stubs containing this information may be liable for an itemized wage statement penalty. Such a penalty results in a penalty of $50 for the first violation, $100 for each subsequent violation - up to $4000 per employee.

MEAL AND REST BREAKS

If lunch breaks or rest breaks are not provided as required by California law, claimants are entitled to more than just the unpaid wage for working through the lunch or rest break, they are also entitled to one hour of pay for each workday that a lawful meal break or rest break was not provided.

MINIMUM WAGE PENALTIES

If an employer fails to pay an employee the California mandated minimum wage rate (currently $8 per hour), the penalty is $100 to each underpaid employee for the first violation, $250 to each employee for each pay period thereafter when there is a violation or underpayment.

UNLAWFUL DEDUCTIONS

When an employer unlawfully collects or deducts monies from an employee's wages, either in the form of a penalty or other such deduction, the unlawful deduction penalty is $100 to each underpaid employee for the first violation and $200 to each employee for each pay period thereafter where this is such a deduction, plus 25% of the amount underpaid.

There are of course other Labor Code penalties, but I have found these to be among the most common.