What Is the Penalty for Not Paying Employees on Time in California?
Nov 16, 2023
| By Ottinger Employment Lawyers
| Read Time: 3 minutes
California law dictates that all employers have a legal obligation to pay employees their wages when those wages are due. This law includes payment for overtime work and final paychecks. An employer not paying on time violates California labor laws and must be held accountable for their adverse actions. If your employer failed to pay you on time or for overtime hours or failed to give you your final paycheck, the employment attorneys at Ottinger Employment Lawyers can help. We’re here to defend workers’ rights and have protected workers’ interests for twenty years. To get started, please contact us online or call 213-214-8002 today. When Should Wages Be Paid? Depending on your employment relationship, your employer may pay your wages by salary or at an hourly pay rate. They may owe you wages at the end of the day, every two weeks, or on the last day of the month. In some cases, they may owe you wages at another date outlined in an employment contract. Employers must pay eligible overtime employees “regular pay” at least once a pay period on every elected payday. The employment relationship between you and your employer will define your “regular pay.” What If My Employer Doesn’t Pay Me on Time? Maybe you’re wondering, can my employer pay me late in California? The answer is almost always ‘no.’ An employer not paying wages on time in California faces stiff penalties, and you can take action to recoup damages. When you file a claim against your employer for unpaid wages, you request damages for any losses suffered when your employer failed to pay you. Penalties, however, differ from damages. Penalties are extra fines that California imposes on your employer for violating your employee rights. Penalties serve to rebuke your employer and deter them from illegally withholding wages in the future. In California, failing to pay employees on time results in penalties. For initial violations, the penalty is $100 per employee. Subsequent or intentional violations incur a $200 penalty per employee plus 25% of the unpaid wages. Late Paycheck Damages Lost wages, known as “back pay,” are the amounts you earned for working that should have been paid but weren’t. If your employer failed to pay you for all of your work hours, a court could award you back pay. Back pay totals your unpaid hours times your hourly wage. For example, if your hourly wage is $15 an hour and you worked 30 hours “off the clock” but were not paid for it, you’ll receive $450 in back pay. Late Paycheck Penalties If you receive a late paycheck, California Labor Code 210 requires employers to pay a penalty of $100 for an initial violation. For subsequent offenses, the penalty is $200 plus 25% of the amount your employer unlawfully withheld. This higher penalty may also apply to a first violation if it was deliberate. When your employer’s violation affects many employees, you may consider initiating a claim under California’s Private Attorney General Act (PAGA). This Act allows California employees to enforce the Labor Code on behalf of themselves, other employees, and the State of California. When you take the initiative to pursue this type of action, you have the right to recover a portion of the penalties collected by the State of California. In California, employers have up to 30 days to correct payroll errors. According to the California Wage Law, if an employer fails to rectify underpayment or issue late paychecks, employees are entitled to a full day’s wages at their regular rate for each day the mistake persists. An attorney can help you determine what type of action is most appropriate for your circumstances. Ottinger Employment Lawyers Can Defend Your Rights If you believe your employer violated California wage and hour laws, you may be entitled to significant penalties and damages. In addition to penalties and damages, California wage and hour laws give employees the right to collect attorney fees and court costs. Since 1999, Ottinger Employment Lawyers has helped thousands of employees across California. We can assess your case, explain your potential damages, and help you decide the best course of action to achieve your maximum compensation. Call 213-214-8002 and let us assist you.
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5 Ways to Beat a Non-Compete Agreement in New York
Nov 16, 2023
| By Ottinger Employment Lawyers
| Read Time: 6 minutes
Ottinger Employment Lawyers Can Help with Non-Compete Agreements New York non-compete agreements are widely abused and overused. Most of them are not enforceable because New York disfavors them. New York courts will only enforce them in only very rare limited situations. As explained more below, we are able to defeat most non-compete agreements by using the Legitimate Business Interests Test. A court will only enforce a non-compete agreement if the company can satisfy this test and most companies cannot do so. Non-compete agreements were historically used by companies to protect their proprietary interests from competitors. These agreements restricting when, where, or for whom employees can work were once limited to specific individuals: for example, high-level company executives who had access to company trade secrets or workers who developed unique skills while employed by the company. Over the past decade, however, companies have started asking rank-and-file employees to sign non-compete agreements. It’s estimated that one in five American workers today is bound by one of these agreements, restricting their ability to seek competitive wages or pursue their professional goals. In some states, like New York, courts are taking steps to limit the power of non-compete agreements and the negative impact they can have on workers and the economy. What most employees don’t realize is that even though non-compete agreements are legal for employers to issue in New York, many of these agreements can’t be enforced. In this post, we’ll lay out what New York law says about non-compete agreements, review some of the tactics that employees can use to invalidate one, and explain how workers can seek support in overcoming their employer’s non-compete agreement. Ottinger Employment Lawyers have been assisting executives with non-compete issues since 1999. Submit the short form below to get started with a consultation. If you have questions about non-compete agreements in New York, our attorney, Robert Ottinger is an expert when it comes to non-compete agreements in New York. If you would like to get in contact with a New York employment law attorney, contact us today. What is a Non-Compete Agreement? In response to the passing of A1278B by the New York State Assembly on June 20, 2023, the state’s labor law now expressly prohibits the enforcement of non-compete agreements among workers. This law marks a significant change, following the Federal Trade Commission’s proposal for a nationwide ban on non-competes. A non-compete agreement is a clause typically inserted into an employment or separation agreement that prohibits a person from working for a competitor of their employer in a given area and/or for a period of time. It could also be presented to you as a separate contract after you’ve begun working. A non-compete agreement can limit your ability to move around in your industry, pursue new opportunities, and find competitive wages. By signing one, you effectively agree that if you stop working for your employer, you will face limited options for finding a new role that uses your skills and experience. For example, a consultant who works in New York City might be prohibited from finding a role form a new firm that operates anywhere in Manhattan. A non-compete agreement could also bar someone from looking for work in their industry from six months to two years after they leave their previous employer. If you break your end of the contract by taking a job with a competitor, your employer may sue. This can put a significant financial and legal burden on employees and put any potential new job opportunities at risk. How to Evaluate New York Non-Compete Agreements In New York, courts disfavor non-compete agreements and enforce them only when necessary. Here are the main factors courts consider: Courts apply the same standard to non-solicitation agreements. The good news is that in New York, non-compete agreements are widely misunderstood. New York non-competition law attempts to strike a balance to protect an employer’s legitimate business interests, an employee’s ability to earn a living, and the public interest in free trade. In New York, courts largely disfavor non-compete agreements and enforce them only when necessary. They consider four factors when determining whether to enforce an agreement: In New York, the courts apply the same standard to non-solicitation agreements. These four criteria place a high bar for non-compete agreements — one that many of them can’t meet. They also give employees a number of arguments that can be used to fight their existing non-compete agreements in court. If a non-compete agreement doesn’t meet one of these criteria, then it can be rendered invalid by a judge. 5 Ways to Defeat a New York Non-Compete Agreement Workers in New York have successfully used a number of tactics to prove that their employers’ non-compete agreements are unenforceable. Here are some of the arguments that most commonly help invalidate these agreements in court. 1. Fired Without Cause If your employer is not willing to employ you, courts generally will not enforce a non-compete agreement. This is almost black letter law in New York, so if you were fired without cause, your non-compete agreement is not enforceable. 2. The Legitimate Business Interests Test An employer cannot enforce a non-compete agreement against an employee unless it can demonstrate a legitimate interest that needs to be protected. In most cases, the only legitimate interest that justifies the enforcement of a non-compete clause is a trade secret. This means that your non-compete agreement will not be enforced unless your company has trade secrets, and you know about them. Fortunately, very few people have actual knowledge of a company’s trade secrets, which makes many non-compete agreements unenforceable. Courts don’t want to lock talented employees out of their fields unless there is a very good reason to do so. 3. Unclean Hands A non-compete agreement is a legal contract. But your employer cannot legally enforce an agreement that it breached itself. Your non-compete is probably part of your employment agreement. Has your employer violated any of its promises? Read through your employment contract carefully to determine […]
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What Employees Need to Know about California’s New Wage Theft Law
Nov 15, 2023
| By Ottinger Employment Lawyers
| Read Time: 6 minutes
Workers in California are cheated out of an estimated $2 billion in stolen wages every year. Although California has some of the strongest employee protection laws in the nation, wage theft is unfortunately still pervasive in the state. Especially among low-wage and hourly workers. Many employees don’t even realize that their employers are stealing from them. And those who do are often afraid to take action for fear of employer retaliation. In 2021, California employees sought only $320 million in civil restitution for unpaid wages — a fraction of the estimated $2 billion stolen by employers every year. To combat this epidemic, the state recently adopted a law that takes an aggressive new approach to cracking down on employers who intentionally withhold compensation from their workers. In this blog post, we’ll explain what wage theft is, break down how California’s new law takes a strong stance against it, and outline how workers in California can take action to get compensation for lost wages. If you still have questions or would like to speak with a California employment lawyer, please contact us online today or call 213-204-8002. What Does Wage Theft Look Like In California? In California, wage theft is a serious offense. As per Assembly Bill 1003 passed in 2021, instances of wage theft exceeding $950 are prosecuted as grand theft. Victims can report such cases to law enforcement authorities. Wage theft happens any time an employer fails to give an employee the compensation that they’re legally owed for their work. Wage theft can happen in a variety of different ways, and it doesn’t necessarily have to involve just your wages. Withholding any earned benefits or gratuities, like meal breaks or sick leave, also constitutes wage theft under California law. Here are some more examples of what wage theft can look like, according to the California Labor Commissioner’s office: In 2011, California passed the Wage Theft Prevention Act, which aimed to raise awareness about the extent of wage theft in the state and put the onus on employers to inform workers about their rights to fair pay. Under this law, all private employers have the duty to inform their employees about certain basic but critical information about their compensation and benefits. This includes: Employers have to provide this information to workers in writing (in their preferred language) when they’re hired. They’re also required to disclose any and all alternate names the company might use as part of their business. For example, if a landscaper is incorporated under the owner’s name, but uses different “trade names” for its locations in different cities. If there are any changes to the pay or benefits policy, it’s the employer’s responsibility to provide workers with updated information, if it’s not included in their pay stubs. The 2011 law only applies to employers in the private sector, though. Employees who are considered “exempt” (i.e. don’t receive overtime pay) or who are covered by collective bargaining agreements are also not required to receive pay notice from their employers under the law. What Is Ab 1003 And How Does It Change Wage Theft Law In California? In 2022, a new law went into effect in California that raises the stakes on the battle to prevent the rampant spread of wage theft in the state. Under this law, known as AB 1003, certain incidents of wage theft can now be treated as “grand theft” — a serious offense that poses business owners, managers, and executives with much more serious consequences for stolen wages than before. According to the bill, employers commit grand theft of wages when they intentionally withhold compensation (including wages and gratuities) “in an amount greater than $950 from any one employee, or $2,350 in the aggregate from 2 or more employees, by an employer in any consecutive 12-month period.” The 2022 law applies to all employers in California, regardless of size. Importantly, it also applies to independent contractors as well as direct employees. This is a significant piece of legislation that employers can’t afford to ignore without consequences. Grand theft is considered a felony offense under California law. Prior to 2022, all wage and hour violations were treated as misdemeanor crimes. This meant that if an employee made a complaint or brought civil charges for their stolen wages, companies would be compelled to pay recovery and face fines, but often not much else. Now that employers can be subject to felony prosecution, violating wage laws can mean potential jail time — up to a three-year prison sentence — in addition to severe fines. Access to felony charges also gives California prosecutors more resources to work with during wage theft investigations, such as search warrants and the use of grand juries. This could encourage California prosecutors to investigate wage theft cases as criminal offenses and take legal action against employers. How severe this legal action ends up being will play out on a case-by-case basis. It will also likely hinge on one critical element of the new law: whether or not the wage theft was “intentional.” Proving that an employer was purposefully stealing wages is a bit more complicated than it may seem. Wage violations can stem from miscommunication between employers and workers over policies like break times or payroll scheduling. An employer could even miss an overtime payment due to simple oversight, not out of the intent to deprive a worker their compensation. Demonstrating intentional wage theft in court will require more specific evidence. For example, proof of an employer’s refusal to pay a previously agreed-upon hourly rate of pay. Since AB 1003 doesn’t provide an exact definition of what “intentional” wage theft looks like, interpretations will be determined by the circumstances of each case. What Should I Do If My Employer Is Withholding My Wages Or Benefits? The good news for workers is that you can get restitution for unpaid wages even if your employer isn’t ultimately charged with a crime. Employees who are concerned about missing pay or benefits can take action by filing […]
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