1. Employment Law: Not Getting Paid For Work Completed?
If your employer has fired you or isn’t paying you more than two weeks after you have
completed your work, there are several options available to collect monies due you says
employment attorney San Diego. Today’s blog will briefly discuss several such
methods. In unusual circumstances, there are also other avenues to assure payment of
monies due. Also, claims for future lost wages or even wages not earned after
a wrongful termination or forced resignation should be collected through a lawsuit in
Superior Court if a voluntary agreement is not reached with the employer.
Also, using one of these methods “may” result in the denial of the right to later file a
claim in court against your California employer. This is because a loss at a lower level
might be considered binding in the Superior Courts. That said, let’s get on with it! Says
employment attorney Fresno.
1) Small claims court is available for claims up to $7,500. The process is easy, filing fee
is low, and attorneys are not allowed. That means you are going to appear in court, on
your own, on an equal footing with your employer’s representative. Bring with you all
evidence and witnesses that you believe can help win your case. If you are owed more
than $7,500 (say in back wages) you must give up or waive any amount above that
sum. Higher limits apply to car cases. If you lose, you as the plaintiff may not appeal.
2) Department of Labor Standards Enforcement (DLSE). This is probably the best place
to go for a simple failure to pay wages, loss of meal or rest breaks, or statutory waiting
time penalties. Under the Labor Code, your employer must give you the right to take a
30 minute meal break every 5 hours and two ten minute rest breaks, spaced as close as
practicable to the middle of each of your four hour work shifts pre and post meal. The
DLSE will also make sure that you receive “waiting time” penalties of up to 30 days at

2. your average days’ pay if you are not paid on your final day of work if you are fired, or
within 72 hours if you quit. You can’t make yourself intentionally unavailable to get your
final pay in order to increase your waiting time penalties. In a recent truck driving case
in the oil-fields, it was clear that the company was “pretending” that oil field workers
were actually “drivers”, not entitled to overtime. This is the type of case the DLSE can
easily hear. When your complaints, however, that you are “misclassified”” get you fired
or disciplined, then legal representation is a must.
3) Union proceedings. Many union agreements (“Collective Bargaining Agreements” or
“Memorandum of Understandings” in public employment cases, provide for a union
grievance regarding pay issues. However, in our experience, you are usually allowed to
also take those issues to the DLSE.
4) Limited Court jurisdiction. For disputes up to $25,000, California has a system of
limited jurisdiction courts. Proceedings are simpler, discovery is briefer, and amounts
are limited.
5) Superior Court in your county is the granddaddy of all proceedings and provides the
employee with a jury to hear the case. Due to reductions in court funding, jury trials are
now being pushed back in time, to at least a year to two after the case is filed. Due to
the high cost and long wait, such cases are best reserved for serious disputes over
more than just money due for work completed. For example, our office represents
hundreds of employees state-wide in court each year for wrongful termination, sexual,
race, age and physical’mental condition disability. You are entitled to do full discovery
on your case, including depositions of witnesses, examination of evidence the
corporation has in its files, calling of expert witnesses and the like. Most attorneys who
practice employment litigation will take your case on a contingency and advance all
costs needed to successfully prosecute the case. As a rule of thumb, we’ve found that
about 10% of the settlement usually covers costs of court reporters, subpoenas, jury
fees and the like.
6) Arbitration. Many (especially large) employers insist that potential employees sign
agreements to arbitrate their disputes. While employers tout these as more efficient and
quicker than court, we have found, as exclusive advocates for employees, that this is
not usually the case. It can take many months of wrangling just to decide on the one
person who will be your judge and jury all wrapped into one. Employers will rarely sit by
if a large judgment is awarded against them in arbitration and will bring motions to
challenge the award. We have found that we “win” as much at arbitration as in any other
forum such as court, but the possibilities of a “run away” verdict or even a large

3. recovery (say above 1,000,000) is rare. Why is that? Mainly, arbitrators know that if they
award a plaintiff a large amount, the corporations will never use them again. This
happened recently to an arbitrator in Los Angeles, who was forced to retire from
arbitration and just do mediation.
7) Private mediation. Many large employers will illegally (in my opinion) “tie” your right to
demand arbitration under the employee handbook with a demand that you first mediate
your concern. This makes perfect sense if your amount at stake is modest. In a recent
case, an employee was asked to work off-site where no time records were readily
available and a dispute arose over the hours and expenses incurred by the
employee. (Side note: Under California Labor Code 2802 you are entitled to all
expenses necessarily incurred in doing your job. Keep track of hotels, gas receipt’s and
the like. Most employers now pay about.50/mile for use of your own car). A private
mediation can result in you receiving all of your wages rather quickly and at low to no
cost to you. Some companies maintain an “ombudsman” to invetigate employee
complaints. See if your Human Resources Department has such an office. These were
more popular about ten years ago but there may be a conciliator under some other
name in your HR department.
Some employers will ask you to sign a release of wage claims in return for receiving
wages due for work already done. This is illegal under the Labor Code. You are entitled
to your pay without releasing all of your rights. In many cases, what started as a simple
dispute over wages (say incorrect classification or failure to pay overtime) escalates into
a fear by the company that many others, similarly-situated, will bring claims. You may
be asked to agree not to represent other employees and “waive” your right to be a class
representative. Be sure to check with an attorney to make sure that’s in your best
interest. As always, this blog is not legal advise, but educational in nature. Seek a
qualified attorney in your jurisdiction who can advise you on the best course of action
with regard to your specific facts.
employment attorney San Diego., employment attorney Fresno.