In California, back pay is unpaid wages for work you performed during a previous pay period. Back pay – also called “back wages” is typically paid in a lump sum or added to your next regular paycheck.
If you are owed back pay in California, you can file a wage theft claim with the Labor Commissioner or file a wage and hour lawsuit. Your employer may also owe you civil fines.
Below, our California labor and employment lawyers discuss the following topics re. lawsuits for unpaid wages for California employees:
- 1. Reasons for Unpaid Wages
- 2. How do I get paid?
- 3. Statute of Limitations
- 4. Damages
- 5. Payroll Violations
- 6. Exempt Workers and Independent Contractors
- Additional Reading
1. Reasons for Unpaid Wages
There are many reasons why your employer may have under-calculated the amount of money owed to you. The most common ones are the following:
- Minimum wage violations. If you are a non-exempt employee in California, your employer must pay you at least the minimum hourly wage. In 2025, it is $16.50 an hour. Some counties have a higher rate. (The federal minimum wage under the Fair Labor Standards Act (FLSA) is only $7.25 an hour.)
- Overtime pay violations. As a non-exempt employer in California, you are entitled to time-and-a-half pay if you work more than eight hours a workday, 40 hours a workweek, or six consecutive days in a workweek. Your wages must be doubled if you work more than 12 hours in a workday or more than eight hours on the seventh consecutive day of a workweek.
- Meal and rest break violations, California law requires employers to provide non-exempt employees an unpaid 30-minute meal break for every five hours of work, and a paid 10-minute rest break for every four hours of work.
- “Off the clock” work. California law forbids employers from allowing non-exempt employees to work for no compensation.
- Unpaid final wages. Employees are entitled to their paycheck on their last day or work (or within 72 hours if they have less than 72 hours’ notice).
- Unpaid sick leave. California employers generally must provide 40 hours of paid sick leave each year.
- Exempt misclassification. Employers may not misclassify non-exempt workers as exempt in attempt to deprive them of overtime pay, paid rest breaks, and other requirements.
- Illegal payroll deductions. For example, employers cannot deduct office supply costs from an employee’s paycheck.
- Unpaid reimbursements. Employers must pay for employees’ work-related expenses, such as travel and lodging.
- Unpaid Shift Pay. Some employers promise a premium rate for working undesirable hours, such as the “graveyard shift” at a 24-hour business. Neither federal nor California law mandates shift pay, but employers must pay it if they promise to.
- Unpaid “Split-Shift” Pay. Employees whose shifts are divided by at least one hour may be eligible for a “split shift premium” of an hour at minimum wage.
- Retroactive pay increases. If your pay rate is increased, and the effective date is set in the past, the difference between the old and new rates for the time worked during that period is considered back pay.
- Incorrect pay. If you were underpaid or not paid at all for some of your work, then your employer must provide back pay to correct the error. It does not matter if the error was completely inadvertent.
- Discrimination or harassment. Sometimes employers unlawfully deprive their workers of pay, bonuses, promised promotions, or other benefits due to a protected characteristic (such as race, gender, etc.).
- Awards or settlements. In cases involving labor disputes or lawsuits, a court or arbitrator may order an employer to provide back pay.
- Wrongful termination. If you were suspended or terminated and later reinstated, you may be entitled to back pay for the time you were not allowed to work.
Sometimes you are owed back pay due to an inadvertent mistake like a clerical error. Sometimes your employer is deliberately trying to underpay you. Either way, you are owed all the wages you earned no matter whether you are still employed, furloughed, laid off, or fired.1
Back pay and wages are the amounts you should have been paid if your employer had not violated state or federal laws.
2. How do I get paid?
First, make sure you are indeed owed back pay:
- Review all your wage statements, which should include information about hours worked, gross pay, taxes, deductions, hourly rates, etc.
- Flag any inaccuracies and compile any proof in your favor, such as time cards and your employment contract.
- Then multiply your unpaid hours by your hourly rate to calculate your back pay.
Next, try to resolve the matter with your employer. If the mistake was a good-faith error, they are usually agreeable to paying you right away.
However, if your employer refuses to pay you, you can either:
- File a wage theft claim with the California Labor Commissioner. The Division of Labor Standards Enforcement (DLSE) will investigate your case, hold a settlement conference, and, if necessary, hold a hearing where you can present your case. Within 15 days of the hearing, the hearing officer will make a decision; or
- File a wage and hour lawsuit against your employer. This route can be more time-consuming and expensive since it involves more paperwork and going through the courts. However, you may be able to recover a bigger settlement that also covers your attorneys’ fees.
Note that even if the Labor Commissioner or court judge orders that your employer pay you, the employer may still appeal. In extreme cases, your only choice may be putting a lien on their property or trying to garnish their bank account.
Also note that if your employer is violating wage and hour laws against you, 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.
A labor law attorney can help you decide which is the best route to take in your particular case.
You may sue your employer for back pay.
3. Statute of Limitations
The “statute of limitations” (deadline) to file a California wage theft claim or lawsuit is usually three years after the most recent violation. However, if your claim involves a breach of contract, the statute of limitations is either:
- 2 years if there was an oral contract, or
- 4 years if there was a written contract.
Note that if your paycheck bounced, you generally have only one year to file a claim.2
Federal Claims
Depending on your case, you may also choose to file a complaint with U.S. Department of Labor’s Wage and Hour Division (WHD). The deadline to bring a claim is two years from the wage violation, though it is extended to three years if the employer knowingly withheld your pay.
4. Damages
If you win your case for back pay – whether by filing a claim with the California Labor Commissioner or in civil court – you should at least be awarded your unpaid wages plus interest (up to 10% per year).
If you were denied mandatory meal and rest breaks, you should be owed an hour’s wages for each missed break. Or if you were paid less than minimum wage, you should be entitled to “liquidated damages,” which is essentially double your back pay.
You may also be eligible for double damages if we can show your employer intentionally underpaid you.
If we bring a lawsuit, we can also ask for other damages such as:
- pain and suffering,
- reasonable attorney’s fees, and
- court costs.
Late Penalties and Final Paychecks
In addition, the California Labor Code imposes a fee on employers for late paychecks. These include:
- $100 for a first violation (or $200 if the lateness was intentional); or
- $200 for a subsequent violation plus 25% for wages unlawfully withheld.
Meanwhile, if you do not get your final paycheck on your last day of work (or within 72 hours if you gave less than 72 hour’s notice), then you are entitled to a waiting time penalty. This is equal to your daily rate of pay for each day your paycheck is late (up to 30 days).3
5. Payroll Violations
Even if you are paid fully and on-time, your employer may owe you civil fines if your wage statements have incorrect or incomplete information. This would be $50 for the initial violation and $100 for each subsequent one up to $4,000 total.
Furthermore, if your employer fails to show you your payroll records within 21 days of your requesting it, you are entitled to a $750 civil fine.4
6. Exempt Workers and Independent Contractors
In California, only non-exempt workers are entitled to certain benefits, such as meal and rest breaks and overtime pay. Still, exempt workers and independent contractors are entitled to all the pay that they earned.
Therefore, you can bring a wage theft claim or lawsuit for back pay no matter whether you are paid:
- hourly,
- by salary,
- by retainer,
- by a lump sum,
- by commission, and/or
- piece-meal.
Nor does it matter whether your job is:
- white-collar,
- blue-collar,
- mechanical,
- administrative,
- professional,
- clerical,
- scientific, and/or
- vocational.
Some employers try to lower their expenses by misclassifying you as:
- an independent contractor when you are an employee or
- an exempt employee when you are a non-exempt employee.
In these cases, you may be able to bring a misclassification lawsuit against the employer.
Additional Reading
For more in-depth information, refer to the following scholarly articles:
- Is Back Pay Wages? – American Labor Legislative Review.
- Making Good on Vaca’s Promise: Apportioning Back Pay to Achieve Remedial Goals – UCLA Law Review.
- Back Pay Revisited – Boston College Industry and Commerce Law Review.
- Arbitration Back-Pay Awards – Labor Law Journal.
- The Back Pay Remedy in Title VII Class Actions: Problems of Procedure – Georgia Law Review.
Legal References:
- 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).) “). See also: Barber v. State Personnel Bd. (Court of Appeal of California, Fourth Appellate District, Division Two, 2019) 35 Cal. App. 5th 500; Davis v. Los Angeles Unified School Dist. Personnel Com (Court of Appeal of California, Second Appellate District, Division One, 2007) 152 Cal. App. 4th 1122. 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 Civil Code 3289. California Labor Code 210. California Labor Code 203.
- Labor Code section 226. California Labor Code 1198.5.