California employers must pay wages immediately to employees who get terminated or who resign with 72-hours notice. Otherwise, employers are liable to pay a waiting time penalty equal to the employee’s daily rate of pay for each day late up to 30 days.
Below, our California wage and hour lawyers discuss the following frequently asked questions:
- 1. When do employers have to pay wages in California?
- 2. When do I get my last paycheck if I am fired or quit?
- 3. Are employers ever allowed to withhold wages or a final paycheck?
- 4. Can I sue my employer for not paying me on time?
- 5. How much money will I get if my employer is late to pay me?
For most California employees, wages must be paid at least twice during each calendar month on days designated in advance as regular paydays.1 Employers have to post a notice specifying the regular paydays and the time and place of payment in advance.2
Any work performed within the first 15 days of each calendar month must be paid between the 16th and the 26th day of that month. Any work performed between the 16th and the last day of the calendar month must be paid between the 1st and 10th day of the following month.3
Additional Work Hours
If an employee works extra or additional hours in excess of the normal work period, they must be paid the overtime wages for the additional work no later than the payday for the next regular payroll.4
Exceptions to Regular Pay Days
Exempt employees may be subject to different payday requirements than nonexempt employees since they are generally exempt from certain California and federal wage and hour laws. Exempt employees – also known as white-collar workers – may include:
- Executive employees
- Administrative employees
- Professional employees5
Exempt salaried employees may be paid once a month, on or before the 26th day of the month during which work was performed if the entire month’s salary is paid at that time.6
Additionally, some employees who are covered by a collective bargaining agreement may have different pay arrangements.7
When an employee is fired or terminated, the employee’s final unpaid wages must be paid immediately upon time of termination. This includes employees who are fired or laid off for cause, or for no reason at all.
Note that payment should be made at the place of discharge unless the employee requests it be mailed or already authorized direct deposit. Also note that employers are not allowed to condition a final paycheck on the employee waiving rights or releasing the employer’s liability – any agreement like this is unenforceable and subjects the employer to a misdemeanor charge.8
If an employee quits or resigns without giving notice to the employer, the former employer generally has to make the final payment available within 72 hours. However, if the employee provides at least 72 hours’ notice of the employee’s intention to resign, the employer has to make final wages available on the employee’s last workday.9
An employee’s final payment includes unpaid wages, as well as any unused vacation or paid time off accumulated by the employee. Although employers are not required to provide paid vacation, those who do must treat it like wages.10 (See more in our article on California vacation pay laws, including caps, “paid time off” policies that include sick days, and “use it or lose it” policies.)
Exceptions to Final Pay Rules
Some employees in certain industries may have different final pay rules that do not require an employer to make the final paycheck available upon termination. This includes:
- Certain seasonal food production workers laid off in groups 11
- Employees working in the motion picture industry 12
- Employees working in the oil drilling business 13
- Live theatrical or concert event venue workers 14
- Temp agency workers15
- Workers subject to a collective bargaining agreement with terms concerning final paychecks16
Employers who do not pay employees on time are subject to waiting time penalties17 unless they have a good faith dispute concerning the amount of wages or final wages due. The employer must present a good faith defense that – if successful – would find the employer did not owe the employee any wages. Examples of a good faith dispute include:
- A mistake of fact, such as a clerical error causing the employer to reasonably believe the employee was already paid.
- A mistake of law, such as the employment agreement being ambiguous as to the date or amount the employer had to pay.
If the employer has a good faith defense – and therefore did not willfully fail to pay – there may be no waiting time penalties. An example of a willful failure to pay is giving an employee a paycheck from a bank account with insufficient funds, or from a bank where the employer does not even have an account.18
If the employer has a good faith dispute over a portion of the employee’s unpaid final wages, the employer must immediately pay any wages that are not in dispute.19
Yes. An employee who is owed unpaid wages can file a lawsuit against their employer to recover unpaid wages, in addition to other damages provided by law.20
An employer who pays late wages or fails to make final payments available is in violation of California wage and hour laws. In many cases, the employer may also be in violation of other California labor laws or the federal Fair Labor Standards Act (FLSA).21
In California wage and hour lawsuits, an employee or group of employees may file a lawsuit against their employer, seeking damages for:
- Unpaid wages
- Unpaid overtime pay
- Total hours worked “off-the-clock”
- Not provided meal periods
- Not provided rest periods
- Failure to pay the California minimum wage
- Failure to pay the local city or county minimum wage
- Late payment of wages
If an employer is violating the legal rights of one employee, they may have a pattern of similar violations against other employees. Successful wage and hour class action lawsuits often involve unpaid wages, late payment of final wages, and other wage and hour violations.
An employee who files a wage and hour lawsuit against an employer who fails to pay wages on time may be able to seek payment, statutory damages, attorney fees, and court costs.22
Late Wage Payments
Private Attorneys General Act (PAGA) claims allow an employee to sue for late wages, as well as a civil penalty.23
The penalties for failing to pay employees on time are as follows:
|Type of Violation||Civil Penalty||Additional Civil Penalty|
|Initial Violation||$100 for each failure to pay each employee||—|
|Second or Subsequent Violation||$200 for each failure to pay each employee||Plus 25% of the amount unlawfully withheld|
|Willful or Intentional Violation||$200 for each failure to pay each employee||Plus 25% of the amount unlawfully withheld|
Any civil penalties recovered by an aggrieved employee are divided up as 75% to the Labor and Workforce Development Agency and 25% to the aggrieved employee.24
Late or Unpaid Final Wages
When an employer fails to pay earned wages due on termination, it may be assessed a waiting time penalty for each late day. The waiting time penalty is equal to the amount of the employee’s daily rate of pay for each day the wages remain unpaid, up to a maximum of 30 days.25
The waiting time penalty is calculated at the daily wage rate multiplied by the number of days of non-payment, up to a maximum of 30 days. (The daily wage rate is the sum of all the wages, bonuses, commissions, and vacation pay, which is then divided by 52 (workweeks), and divided again by 40 (number of hours of work a week).)26
In addition to unpaid wages and waiting time penalties, plaintiffs may also be able to recover interest on the unpaid wages and reasonable attorney’s fees and court costs.27
For questions about late wages or unpaid final wages – or to discuss your wage violation case confidentially with one of our skilled California labor and employment attorneys – contact us at Shouse Law Group.
We create attorney-client relationships and have local employment law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
See our related wage law articles on independent contractors misclassification, regular rate of pay, rest breaks and meal breaks, reimbursements, outside salespeople exemption, and wage statement and pay stub violations.
- Labor Code 204 LC — Payment of wages. (“(a) All wages, other than those mentioned in Section 201, 201.3, 202, 204.1, or 204.2, earned by any person in any employment are due and payable twice during each calendar month, on days designated in advance by the employer as the regular paydays.”). (See also Labor Code 200; DLSE Opinion Letter 2002.12.09-2; Schachter v. Citigroup, Inc. (2009) 47 Cal.4th 610; Smith v. Superior Court (2006) 39 Cal.4th 77.)
- Labor Code 207 LC — Payment of wages. (“Every employer shall keep posted conspicuously at the place of work, if practicable, or otherwise where it can be seen as employees come or go to their places of work, or at the office or nearest agency for payment kept by the employer, a notice specifying the regular pay days and the time and place of payment, in accordance with this article.”)
- Labor Code 204 LC — Payment of wages. (“(a) Labor performed between the 1st and 15th days, inclusive, of any calendar month shall be paid for between the 16th and the 26th day of the month during which the labor was performed, and labor performed between the 16th and the last day, inclusive, of any calendar month, shall be paid for between the 1st and 10th day of the following month.”)
- Labor Code 204 LC — Payment of wages. (“(b)(1) Notwithstanding any other provision of this section, all wages earned for labor in excess of the normal work period shall be paid no later than the payday for the next regular payroll period.”)
- 29 U.S.C. 213(a) — Exemptions to minimum wage and maximum hour requirements. (“The provisions of sections 206 (except subsection (d) in the case of paragraph (1) of this subsection) and 207 of this title shall not apply with respect to—(1) any employee employed in a bona fide executive, administrative, or professional capacity.“)
- Labor Code 204 LC — Payment of wages. (“(a) However, salaries of executive, administrative, and professional employees of employers covered by the Fair Labor Standards Act, as set forth pursuant to Section 13(a)(1) of the Fair Labor Standards Act, as amended through March 1, 1969, in Part 541 of Title 29 of the Code of Federal Regulations, as that part now reads or may be amended to read at any time hereafter, may be paid once a month on or before the 26th day of the month during which the labor was performed if the entire month’s salaries, including the unearned portion between the date of payment and the last day of the month, are paid at that time.”)
- Labor Code 204 LC — Payment of wages. (“(c) However, when employees are covered by a collective bargaining agreement that provides different pay arrangements, those arrangements shall apply to the covered employees.”)
- Labor Code 201 LC — Payment of wages on discharge. (“(a) If an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately.”); Labor Codes 202, 208, 213. See also Villafuerte v. Inter-Con Security Systems, Inc. (2002) 96 Cal.App.4th Supp. 45. Reid v. Overland Machined Products (1961) 55 Cal.2d 203. Labor Code 206.5. See also Chindarah v. Pick Up Stix, Inc. (2009) 171 Cal.App.4th 796; see also Watkins v. Wachovia Corp. (2009) 172 Cal.App.4th 1576.
- Labor Code 202 LC — Payment of wages upon quitting. (“(a) 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.”)
- Labor Code 227.3 LC — (“Unless otherwise prohibited by a collective-bargaining agreement, whenever a contract of employment or employer policy provides for paid vacations, and an employee is terminated without having taken off his vested vacation time, all vested vacation shall be paid to him as wages at his final rate in accordance with such contract or of employment or employer policy respecting eligibility or time served; provided, however, that an employment contract or employer policy shall not provide for forfeiture of vested vacation time upon termination.”). See also Triad Data Services, Inc. v. Jackson (1984) 153 Cal.App.3d Supp. 1. See also Henry v. Amrol, Inc. (1990) 222 Cal.App.3d Supp. 1. See also Suastez v. Plastic Dress-Up Co. (1982) 31 Cal.3d 774. See also Labor Code 227.2 & 206.5. See also Boothby v. Atlas Mechanical, Inc. (1992) 6 Cal.App.4th 1595; Henry v. Amrol, Inc. (1990) 222 Cal.App.3d Supp. 1; Woods v. Fox Broadcasting Sub., Inc. (2005) 129 Cal.App.4th 344; DLSE Opinion Letter 1993.08.18; DLSE Opinion Letter 1990.09.24.
- Labor Code 201 LC — Payment of wages on discharge. (“(a) An employer who lays off a group of employees by reason of the termination of seasonal employment in the curing, canning, or drying of any variety of perishable fruit, fish or vegetables, shall be deemed to have made immediate payment when the wages of said employees are paid within a reasonable time as necessary for computation and payment thereof; provided, however, that the reasonable time shall not exceed 72 hours, and further provided that payment shall be made by mail to any employee who so requests and designates a mailing address therefor.”)
- Labor Code 201.5 LC — Payment of wages in the motion picture industry. (“(b) An employee engaged in the production or broadcasting of motion pictures whose employment terminates is entitled to receive payment of the wages earned and unpaid at the time of the termination by the next regular payday.”)
- Labor Code 201.7 LC — Payment of wages in the oil drilling business. (“An employer who lays off an employee or a group of employees engaged in the business of oil drilling shall be deemed to have made immediate payment within the meaning of Section 201 if the wages of such employees are paid within such reasonable time as may be necessary for computation or payment thereof; provided, however, that such reasonable time shall not exceed 24 hours after discharge excluding Saturdays, Sundays, and holidays; and provided further, such payment may be mailed and the date of mailing is the date of payment.”)
- Labor Code 201.9 LC — Payment of wages for live event venues. (“If employees are employed at a venue that hosts live theatrical or concert events and are enrolled in and routinely dispatched to employment through a hiring hall or other system of regular short-term employment established in accordance with a bona fide collective bargaining agreement, these employees and their employers may establish by express terms in their collective bargaining agreement the time limits for payment of wages to an employee who is discharged or laid off.”)
- Labor Code 201.3; see also Elliot v. Spherion Pac. Work, LLC (C.D.Cal. 2008) 572 F.Supp.2d 1169.
- Labor Code 201.5, 204, 204.1, 204.2.
- Labor Code 203 LC — Failure to make final payment. (“(a) If an employer willfully fails to pay, without abatement or reduction, in accordance with Sections 201, 201.3, 201.5, 201.9, 202, and 205.5, 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.”); see also McLean v. State of California (2016) 1 Cal.5th 615.
- Title 8, California Code of Regulations, Section 13520. (“A willful failure to pay wages within the meaning of Labor Code Section 203 occurs when an employer intentionally fails to pay wages to an employee when those wages are due. However, a good faith dispute that any wages are due will preclude imposition of waiting time penalties under Section 203.”)
- Labor Code 206 LC — Wage disputes. (“(a) In case of a dispute over wages, the employer shall pay, without condition and within the time set by this article, all wages, or parts thereof, conceded by him to be due, leaving to the employee all remedies he might otherwise be entitled to as to any balance claimed.”)
- Murphy v. Kenneth Cole Productions, Inc.(2007) 40 Cal.4th 1094, 1117. (“An employee need not administratively exhaust his claim before filing a civil action.”); see also Post v. Palo/Haklar & Associates (2000) 23 Cal.4th 942.
- 29 U.S.C. 216(b) — Damages; right of action; attorney’s fees and costs; termination of right of action. (“Any employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages.”)
- Labor Code 2699 LC — Private Attorneys General Act. (“(g)(1) Except as provided in paragraph (2), an aggrieved employee may recover the civil penalty described in subdivision (f) in a civil action pursuant to the procedures specified in Section 2699.3 filed on behalf of himself or herself and other current or former employees against whom one or more of the alleged violations was committed. Any employee who prevails in any action shall be entitled to an award of reasonable attorney’s fees and costs, including any filing fee paid pursuant to subparagraph (B) of paragraph (1) of subdivision (a) or subparagraph (B) of paragraph (1) of subdivision (c) of Section 2699.3. Nothing in this part shall operate to limit an employee’s right to pursue or recover other remedies available under state or federal law, either separately or concurrently with an action taken under this part.)”
- Labor Code 2699 LC — Private Attorneys General Act. (“(f) For all provisions of this code except those for which a civil penalty is specifically provided, there is established a civil penalty for a violation of these provisions, as follows: (1) If, at the time of the alleged violation, the person does not employ one or more employees, the civil penalty is five hundred dollars ($500). (2) If, at the time of the alleged violation, the person employs one or more employees, the civil penalty is one hundred dollars ($100) for each aggrieved employee per pay period for the initial violation and two hundred dollars ($200) for each aggrieved employee per pay period for each subsequent violation.”); 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.”).
- Labor Code 2699 LC — Private Attorneys General Act. (“(i) Except as provided in subdivision (j), civil penalties recovered by aggrieved employees shall be distributed as follows: 75 percent to the Labor and Workforce Development Agency for enforcement of labor laws, including the administration of this part, and for education of employers and employees about their rights and responsibilities under this code, to be continuously appropriated to supplement and not supplant the funding to the agency for those purposes; and 25 percent to the aggrieved employees.”). Labor Code 210 LC — Payment of wages. (“(a) In addition to, and entirely independent and apart from, any other penalty provided in this article, every person who fails to pay the wages of each employee as provided in Sections 201.3, 204, 204b, 204.1, 204.2, 205, 205.5, and 1197.5, shall be subject to a civil penalty as follows: (1) For any initial violation, one hundred dollars ($100) for each failure to pay each employee. (2) For each subsequent violation, or any willful or intentional violation, two hundred dollars ($200) for each failure to pay each employee, plus 25 percent of the amount unlawfully withheld.”) Labor Code 210 LC — Payment of wages. (“(b) The penalty shall be recovered by the Labor Commissioner as part of a hearing held to recover unpaid wages and penalties pursuant to this chapter or in an independent civil action. The action shall be brought in the name of the people of the State of California and the Labor Commissioner and the attorneys thereof may proceed and act for and on behalf of the people in bringing these actions. Twelve and one-half percent of the penalty recovered shall be paid into a fund within the Labor and Workforce Development Agency dedicated to educating employers about state labor laws, and the remainder shall be paid into the State Treasury to the credit of the General Fund.”); Labor Code 2699 LC — Private Attorneys General Act. (“(a) Notwithstanding any other provision of law, any provision of this code that provides for a civil penalty to be assessed and collected by the Labor and Workforce Development Agency or any of its departments, divisions, commissions, boards, agencies, or employees, for a violation of this code, may, as an alternative, be recovered through a civil action brought by an aggrieved employee on behalf of himself or herself and other current or former employees pursuant to the procedures specified in Section 2699.3.”); Cal. Code of Regs., tit. 8, § 13520; see also Heritage Residential Care, Inc. v. Division of Labor Standards Enforcement (2011) 192 Cal.App.4th 75; Novoa v. Charter Communs., LLC (E.D.Cal. 2015) 100 F. Supp. 3d 1013. See also California Labor Code 558.
- Labor Code 203 LC, see footnote 18 above.
- Mamika v. Barca (1998) 68 Cal.App4th 487, 493. (“A proper reading of section 203 mandates a penalty equivalent to the employee’s daily wages for each day he or she remained unpaid up to a total of 30 days. This larger penalty acts as a disincentive to employers who are reluctant to pay wages in a timely manner, thus furthering the intent of the statutory scheme.”); Drumm v. Morningstar, Inc. (N.D. Cal. 2010) 695 F.Supp.2d 1014.
- California Labor Code section 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.”)