When an employer violates California wage and hour laws, the employer may end up owing the employee for back pay and wages. These are the amounts the employee should have been paid if the employer had not violated state or federal labor laws. This can include interest of up to 10% per year.
Back pay is also sometimes called “backwages.”
If an employee is owed back pay and wages, he or she can recover back wages by filing a wage and hour lawsuit.
Below, our California labor and employment lawyers discuss the following frequently asked questions about lawsuits for unpaid wages for California employees:
- 1. What is back pay and when do employers owe for back wages?
- 2. How do I know if my employer owes me back pay and wages?
- 3. How long do I have to file an unpaid back wages lawsuit in California?
- 4. How much money am I owed in back pay, interest, and penalties?
- 5. How can I file a claim for back pay or unpaid wages in California?
Back pay is the amount of money owed to an employee for work completed but not paid by the employer. Back pay wages are similar to unpaid wages in California. However, back payment of wages is often money calculated after the employer is determined to have violated some wage or hour laws.
For example, if an employer improperly calculates the employee’s paycheck, the employee may have been underpaid for past work. The employee may notice the problem or the California Division of Labor Standards Enforcement (DLSE) may recalculate the amount and notify the employee that he or she is owed back pay.
Back pay and back wages in California are generally related to wage and hour law violations that under-calculate the amount of money owed to the employee.
This may involve the following types of violations:
- Minimum wage violations,
- Overtime pay violations (such as unpaid overtime),
- Unpaid meal and rest breaks,
- Unpaid final wages,
- Unpaid sick leave,
- Exempt misclassification,
- “Off the clock” work,
- Illegal payroll deductions, or
- Unpaid reimbursements.
Most employees are notified of back pay and wages after a California DLSE investigation. The agency may send out a notice telling the employee they are owed back pay and wages for some employer state or federal FLSA wage violation.
However, the DLSE does not catch all wage and hourly rate violations. It may be up to the employee to calculate how much they are owed in a pay period and compare that to the amount they are paid.
California law provides a number of minimum wage and hour protections for non-exempt employees in California. This includes:
- Minimum wage,1
- Overtime (whether permitted or not),23
- Lunch breaks,4 and
- Off-the-clock restrictions.5
The California Department of Industrial Relations makes the following recommendations to make sure you are paid your full wages and to support your case when filing a claim:
- Track the number of hours worked: write down the time you begin and end work every day, total hours worked, and when you take meal or rest breaks.
- Keep all pay stubs: itemized wage statements must contain certain information, including wages earned, deductions, and dates of the pay period.
In addition to the back pay and wages, the DLSE may also add interest to the unpaid wages. Interest on back pay is limited to 10% per year.
The amount of time to file an unpaid back wages lawsuit in California depends on the type of claim. The time limit, also called the “statute of limitations,” for most California wage and hour violations must be filed within three (3) years from the date of the most recent violation.6
Back pay violations that are based on breach of contract claims must be filed within 2 or 4 years.
- If the unpaid wage claim is based on an oral agreement (no written contract), the claim must be filed within two (2) years.
- If the unpaid wage claim is based on a written agreement, the claim must be filed within four (4) years.
It is important to file the claim in time or your claim may be denied. Talk to a California wage and hour lawsuit attorney as soon as possible to make sure your claim is filed in time so you can get the full compensation you are owed.
The amount of money owed for back pay and back wages may depend on the type of violation and the actions of the employer. If the back pay was the result of a mistake with no intentional wrongdoing, back pay may include:
- The unpaid wages from the miscalculation, and
- Interest on the unpaid wages (up to 10% per year).
If the back pay or unpaid wages were the results of labor code violations, the employer may also owe damages and penalties for the violations. Back payment for labor violations may include:
- The unpaid wages from the miscalculation,
- Interest on the unpaid wages (up to 10% per year),
- If the employer did not give mandatory meal breaks or rest breaks, you may be eligible for one hour’s wages for each missed break,7 and
- Reasonable attorney’s fees and court costs.8
If the violations were the result of intentional underpayment or were not due to a good-faith error, you may be eligible for double damages.9
If you are owed back pay or unpaid wages in California, you can file a lawsuit to recover
- the amount owed, including
- interest and any penalties.
Talk to your attorney about your case and how to make your employer pay for the work you were never compensated for.
If you are worried that you cannot afford to hire an attorney, many California employment lawyers represent employees based on contingency agreements. This means the lawyer will not get paid until you do.
Remember, California wage and hour laws require employers to pay employees’ attorney’s fees in successful unpaid wage lawsuits, which means this fee this will not reduce your total recovery.
If an employer is violating wage and hour laws for one employee, they may be doing it to multiple employees. This may mean your case can become part of a class action lawsuit on behalf of a large number of employees.
For questions about how to win a wage claim in California, unpaid back payment, or to discuss your case confidentially with one of our skilled California labor and employment attorneys, do not hesitate to contact us at Shouse Law Group.
We create attorney-client relationships and have local employment law offices throughout the state of California, including Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
See the California Department of Labor.
- Labor Code 1197 LC — Payment of lower wage than minimum wage. (“The minimum wage for employees fixed by the commission or by any applicable state or local law, is the minimum wage to be paid to employees, and the payment of a lower wage than the minimum so fixed is unlawful. This section does not change the applicability of local minimum wage laws to any entity.”)
- Labor Code 510 LC — Day’s work; overtime; commuting time. (“(a) Eight hours of labor constitutes a day’s work. Any work in excess of eight hours in one workday and any work in excess of 40 hours in any one workweek and the first eight hours worked on the seventh day of work in any one workweek shall be compensated at the rate of no less than one and a-half times the regular rate of pay for an employee. Any work in excess of 12 hours in one day shall be compensated at the rate of no less than twice the regular rate of pay for an employee. In addition, any work in excess of eight hours on any seventh day of a workweek shall be compensated at the rate of no less than twice the regular rate of pay of an employee. Nothing in this section requires an employer to combine more than one rate of overtime compensation in order to calculate the amount to be paid to an employee for any hour of overtime work. The requirements of this section do not apply to the payment of overtime compensation to an employee working pursuant to any of the following: (1) An alternative workweek schedule adopted pursuant to Section 511. (2) An alternative workweek schedule adopted pursuant to a collective bargaining agreement pursuant to Section 514. (3) An alternative workweek schedule to which this chapter is inapplicable pursuant to Section 554.”)
- Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, 584–85. (“Along with other amici curiae, the California Labor Commissioner notes that “the time the employee is suffered or permitted to work, whether or not required to do so” can be interpreted as time an employee is working but is not subject to an employer’s control. This time can include work such as unauthorized overtime, which the employer has not requested or required. “Work not requested but suffered or permitted is work time. For example, an employee may voluntarily continue to work at the end of the shift. The employer knows or has reason to believe that he is continuing to work and the time is working time. (29 C.F.R. § 785.11 (1998).) “In all such cases it is the duty of the management to exercise its control and see that the work is not performed if it does not want it to be performed.” (29 C.F.R. § 785.13 (1998).) “)
- Labor Code 512 — Meal periods; requirements; order permitting meal period after six hours of work; exemption; remedies under collective bargaining agreement. (“(a) An employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee. An employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived.”)
- Adoma v. University of Phoenix, Inc. (E.D. Cal. 2010) 270 F.R.D. 543, 548. (“California law requires that an employer pay for all hours that it “engages, suffers, or permits” an employee to work.”)
- Code of Civil Procedure 338 CCP — Statutes of limitations for wage/hour lawsuits. (“Within three years: (a) An action upon a liability created by statute, other than a penalty or forfeiture.”)
- 8 C.C.R 11040. (“11 . . . (B) If an employer fails to provide an employee a meal period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each workday that the meal period is not provided. . . . 12 . . . (B) If an employer fails to provide an employee a rest period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each workday that the rest period is not provided.”)
- Labor Code 1194 LC — Action to recover minimum wage, overtime compensation, interest, attorney’s fees, and costs by employee. (“(a) Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney’s fees, and costs of suit. (b) The amendments made to this section by Chapter 825 of the Statutes of 1991 shall apply only to civil actions commenced on or after January 1, 1992.”)
- Labor Code 1194.2 — Liquidated damages in wage/hour suits. (“(a) In any action under Section 98, 1193.6, 1194, or 1197.1 to recover wages because of the payment of a wage less than the minimum wage fixed by an order of the commission or by statute, an employee shall be entitled to recover liquidated damages in an amount equal to the wages unlawfully unpaid and interest thereon. Nothing in this subdivision shall be construed to authorize the recovery of liquidated damages for failure to pay overtime compensation. A suit may be filed for liquidated damages at any time before the expiration of the statute of limitations on an action for wages from which the liquidated damages arise. (b) Notwithstanding subdivision (a), if the employer demonstrates to the satisfaction of the court or the Labor Commissioner that the act or omission giving rise to the action was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of any provision of the Labor Code relating to minimum wage, or an order of the commission, the court or the Labor Commissioner may, as a matter of discretion, refuse to award liquidated damages or award any amount of liquidated damages not exceeding the amount specified in subdivision (a). (c) This section applies only to civil actions commenced on or after January 1, 1992.”)
- California Labor Code 98.6 LC — Discharge or discrimination, retaliation, or adverse action against employee or applicant for conduct delineated in this chapter or because employee or applicant has filed a complaint or claim, instituted or caused to be instituted any proceeding under or relating to his or her rights or testified relating to the same on behalf of that person or another whistleblower protection for reporting wage/hour or labor law violations.