Labor Commissioner Can Help Pursue Back Wages

Q: I left my job in September because I had not been paid since June. Several other workers have left and have gone to the labor board, which did nothing. Others have won judgments but still have gotten nothing. What should I do?

--W.C., Fullerton

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A: You should file a claim with the labor commissioner’s office. An employer’s willful failure to pay earned wages to employees is a serious matter under California law, carrying monetary and even criminal penalties in some cases.

When you say that other employees went to the labor board, I assume you mean the California labor commissioner. If they went to the National Labor Relations Board, that agency probably would have no jurisdiction over this type of claim.

Also, you should understand that the labor commissioner’s office cannot produce instant results, even on a valid claim. Typically, the office schedules an informal conference with the parties to determine if the claim appears valid and to attempt to resolve it. If the claim is deemed valid and is not resolved, a formal hearing is scheduled. This may take an additional period of six months or more. Even then, the losing party may obtain a new hearing in Municipal Court.

The labor commissioner may have decided not to pursue the claims of some of your co-workers because the claims were invalid or because they had no jurisdiction. For example, the labor commissioner does not have jurisdiction over independent contractors.

If the commissioner finds that a claim has merit after a formal hearing, he issues an award in the employee’s favor, which is the equivalent of a civil judgment. It will still be up to you to find assets of the employer (a bank account, for example) that can be used to satisfy the commissioner’s award in your favor. This may be difficult if the employer has gone out of business or has no money.

You will have to evaluate if the amount of money at stake justifies this type of effort.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

Daily Overtime Applies to Work in ’97

Q: My employer does not pay overtime if you miss regular work hours. Late in 1997, I took a vacation day on a Monday. On Tuesday I worked 9 1/2 hours, and I worked regular shifts the rest of the week. I was paid straight time for the 1 1/2 extra hours I worked on Tuesday. The company said its workweek is 40 hours of actual work. Is this right?

--D.M., Los Angeles

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A: Perhaps your employer was anticipating a revision in the overtime law, which took effect Jan. 1, that eliminated overtime compensation for work over eight hours per day. However, because your question concerns work performed in 1997, your employer owed you time and a half for any work over eight hours in a day. Of course, there were exceptions to some of these laws, depending on your particular job or industry.

Under the revised law, eligible workers should be paid overtime for working more than 40 hours in a workweek. To compute overtime on a weekly basis, the employer may count only actual hours of work and ignore the paid vacation and holiday hours.

--Don D. Sessions

Employee rights attorney

Mission Viejo

Frequency of Pay Depends on Position

Q: I have heard that it is illegal to pay salaried employees just once a month. My husband works in California for a New Jersey company that draws checks there and pays him once a month. Is this legal? The company has an office and warehouse in California and many employees work here.

--L.B., Newport Beach

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A: It depends on your husband’s position. If he is an exempt executive, administrative or professional employee, his employer may elect to pay his salary once a month. If he is not exempt for overtime purposes, he should be paid twice a month.

In any case, his paycheck should be drawn on a financial institution with offices in California.

--Michael A. Hood

Employment law attorney

Paul, Hastings, Janofsky & Walker

Resignation Means No Jobless Benefits

Q: Instead of firing professional employees, my firm seems to terminate them by requesting the employee write a letter of resignation in exchange for a good reference. Does this kind of forced letter of resignation eliminate eligibility for state unemployment benefits?--M.S., Canoga Park

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A: Rather than a forced resignation, it sounds as if your employer is giving employees a choice: They can resign and get a reference letter, or they can be fired. Should the employee elect to voluntarily resign without good cause or should that person be fired for misconduct, he or she would be ineligible for unemployment compensation benefits. However, an employer who writes a favorable letter of reference under these circumstances could possibly be liable to another employer who relies on that reference letter in hiring the individual.

--Kirk F. Maldonado

Employee benefits attorney

Riordan & McKinzie

If you have a question about an on-the-job situation, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626, or e-mail it to [email protected]. Include your initials and hometown. The Shop Talk column is designed to answer questions of general interest. It should not be construed as legal advice.