Which states laws to follow for resignation from an out of state employer?
I worked in California for a company based in New York. I recently gave notice (2 weeks) and served out that time. They did not hand over my final check at that time, and have still not paid out wages 1 week after final date worked. They have stated I would be paid on their next normal pay cycle my final check. Is this correct? I know in California, final wages are due on last day worked.
1 answer | asked Jul 18, 2012 2:13 PM [EST] | applies to California
Answers (1)
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Many out-of-state employers make this same mistake, and even many California employers, too. It is irrelevant that the employer is based in New York. If you work in California, you are a California employee.
You are correct that under California law, an employer is required to pay employees at the time of termination if the employee gives at least 72 hours notice:
“If an employee not having a written contract for a definite period quits his or her employment, his or her wages shall become due and payable not later than 72 hours thereafter, unless the employee has given 72 hours previous notice of his or her intention to quit, in which case the employee is entitled to his or her wages at the time of quitting.“ California Labor Code section 202(a).
If the employer does not do so, the employee's wages continue at the regular rate until the employer pays the employee in full, for a maximum of 30 days:
“If an employer willfully fails to pay . . . in accordance with Sections . . . 202 . . ., any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but the wages shall not continue for more than 30 days. An employee who secretes or absents himself or herself to avoid payment to him or her, or who refuses to receive the payment when fully tendered to him or her, including any penalty then accrued under this section, is not entitled to any benefit under this section for the time during which he or she so avoids payment. “ California Labor Code section 203(a).
In addition to these penalties, you are also entitled to interest at the legal rate of 10 per cent per annum.
The Division of Labor Standards Enforcement (DLSE) is a sub-agency within the California Department of Industrial Relations. http://www.dir.ca.gov/dlse/. Some people refer to the DLSE as the Labor Commissioner. The DLSE enforces California's wage and hour laws, including those pertaining to overtime, rest and meal breaks, and more. The link for information on filing a wage claim is here: http://www.dir.ca.gov/dlse/howtofilewageclaim.htm.
You can also pursue this claim via an attorney and you are entitled to reimbursement for your reasonable attorney's fees and costs. However, for a relatively small claim, it makes more sense to go through the DLSE.
To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org, and you can search for attorneys by location and practice area.
I hope you can resolve your situation and wish you the best.
posted by Marilynn Mika Spencer | Jul 18, 2012 3:57 PM [EST]
Many out-of-state employers make this same mistake, and even many California employers, too. It is irrelevant that the employer is based in New York. If you work in California, you are a California employee.
You are correct that under California law, an employer is required to pay employees at the time of termination if the employee gives at least 72 hours notice:
“If an employee not having a written contract for a definite period quits his or her employment, his or her wages shall become due and payable not later than 72 hours thereafter, unless the employee has given 72 hours previous notice of his or her intention to quit, in which case the employee is entitled to his or her wages at the time of quitting.“ California Labor Code section 202(a).
If the employer does not do so, the employee's wages continue at the regular rate until the employer pays the employee in full, for a maximum of 30 days:
“If an employer willfully fails to pay . . . in accordance with Sections . . . 202 . . ., any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but the wages shall not continue for more than 30 days. An employee who secretes or absents himself or herself to avoid payment to him or her, or who refuses to receive the payment when fully tendered to him or her, including any penalty then accrued under this section, is not entitled to any benefit under this section for the time during which he or she so avoids payment. “ California Labor Code section 203(a).
In addition to these penalties, you are also entitled to interest at the legal rate of 10 per cent per annum.
The Division of Labor Standards Enforcement (DLSE) is a sub-agency within the California Department of Industrial Relations. http://www.dir.ca.gov/dlse/. Some people refer to the DLSE as the Labor Commissioner. The DLSE enforces California's wage and hour laws, including those pertaining to overtime, rest and meal breaks, and more. The link for information on filing a wage claim is here: http://www.dir.ca.gov/dlse/howtofilewageclaim.htm.
You can also pursue this claim via an attorney and you are entitled to reimbursement for your reasonable attorney's fees and costs. However, for a relatively small claim, it makes more sense to go through the DLSE.
To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org, and you can search for attorneys by location and practice area.
I hope you can resolve your situation and wish you the best.
posted by Marilynn Mika Spencer | Jul 18, 2012 3:57 PM [EST]
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