Employer Dillema

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My sister works for a daycare(franchise)  which is not so professional environment.  She makes minimum wage and she notified the owner that she will be going back to college for pre-med.  She worked there for the summer.  Her last day was Aug. 16.  Up to this day they have not send her last paycheck.  She has talked to the supervisor last week and said that he will mail the check last Saturday but up to this day she has not received the check.  What should she do now?  It has been three weeks.  The daycare was cited during the summer for a violation.  My sister is afraid that they might not pay her.  The check is for $900

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If it was me I'd go and wait for this "supervisor" in the parking lot until he was done with his shift and beat the crap... (more)

alamo11 (Sep. 21, 2013 @ 9:05p) |

Then spend some good time in prison?

sandy05 (Sep. 21, 2013 @ 9:10p) |

How do you spell dilemma?

Argyll (Sep. 21, 2013 @ 9:58p) |

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Since it is a franchise, I would speak to someone at corporate. They should be able to apply the pressure to have your wife get paid.

Tell her to send the daycare a letter (Certified mail, return receipt requested - CMRRR) asking for her check. At the end of the letter, write "cc: [her state] Department of Labor". Send a copy of the letter to said department.

tennis8363 said:   Since it is a franchise, I would speak to someone at corporate. They should be able to apply the pressure to have your wife get paid.
  
You mean his sister, not wife.

ach1199 said:   
tennis8363 said:   Since it is a franchise, I would speak to someone at corporate. They should be able to apply the pressure to have your wife get paid.
  
You mean his sister, not wife.

  
Maybe they live in Alabama?  

OP, be sure to check your state labor laws.  It's quite possible the employer may owe penalties to your sister.  If I remember correctly (it's been a while, so I could be wrong), in California if the employer fails to pay the final paycheck on time (on day of termination if they are terminating you, or on your final day if you give at least 3 days notice), then they owe you as if you had continued working your regular schedule until they actually pay you.

This is not a termination but separation. She only work for minimum wage and she is owed $900. It has been a month since she left. The supervisor is ignoring her calls and text. This is in California.

Contact the Department of Labor. http://www.dir.ca.gov/dlse/DistrictOffices.htm

An employee without a written employment contract for a definite period of time who gives at least 72 hours prior notice of his or her intention to quit, and quits on the day given in the notice, must be paid all of his or her wages, including accrued vacation, at the time of quitting. Labor Code Section 202

An employee without a written employment contract for a definite period of time who quits without giving 72 hours prior notice must be paid all of his or her wages, including accrued vacation, within 72 hours of quitting. An employee who quits without giving 72-hours prior notice may request that his or her final wage payment be mailed to a designated address. The date of mailing will be considered the date of payment for purposes of the requirement to provide payment within 72 hours of the notice of quitting. Labor Code Section 202

http://www.dir.ca.gov/dlse/faq_paydays.htm

thanks caterpillar123 for confirming my recollection!  Since you did the legwork and provided the link, I followed the link and confirmed the penalty IS indeed to pay the employee for wages up to 30 days:
[L=http://www.dir.ca.gov/dlse/faq_paydays.htm said: An]http://www.dir.ca.gov/dlse/faq_paydays.htm]An[/L] employer who willfully fails to pay any wages due a terminated employee (discharge or quit) in the prescribed time frame may be assessed a waiting time penalty. The waiting time penalty is an amount equal to the employee's daily rate of pay for each day the wages remain unpaid, up to a maximum of thirty (30) calendar days. Mamika v. Barca (1998) 68 Cal.App4th 487 An employee will not be awarded waiting time penalties if he or she avoids or refuses to receive payment of the wages due. If a good faith dispute exists concerning the amount of the wages due, no waiting time penalties would be imposed. A "good faith dispute" that any wages are due occurs when an employer presents a defense, based in law or fact which, if successful, would preclude any recovery on the part of the employee. The fact that a defense is ultimately unsuccessful will not preclude a finding that a good faith dispute did exist. However, a defense that is unsupported by any evidence, is unreasonable, or is presented in bad faith, will preclude a finding of a "good faith dispute". Labor Code Section 203 and Title 8, California Code of Regulations, Section 13520

Even if there is a dispute, the employer must pay, without requiring a release, whatever wages are due and not in dispute. If the employer fails to pay what is undisputed, the "good faith" defense will be defeated whatever the outcome of the disputed wages. Labor Code Section 206



Also, OP, the terminology "termination" doesn't really carry the negative connotation of being fired.  Terminations can be voluntary or involuntary, and initiated by the employer or employee.

Looks like your sister has a nice payday coming - eventually.

petenth said:   Her last day was Aug. 16.  Up to this day they have not send her last paycheck.  She has talked to the supervisor last week and said that he will mail the check last Saturday but up to this day she has not received the check. 
Please clarify - do they always mail the paychecks, or are they typically distributed in-person? The law typically requires the paychecks be made available as per standard procedure - meaning the check quite likely has been sitting there waiting patiently to be picked up. In that case, the supervisor offering to mail it to her is little more than a courtesy, and nothing binding you can hold them to.

Dont always assume the worst.
 

The check is distributed every 2 weeks and the employer promised to mail it last Saturday and it has been 7 days since he mailed it. Usually takes 2 or 3 days the most. As I said the employer was arrested and cited for violation when she started working there and supervisor assured everyone that business is normal when she was working there but my sister is just nervous that it has been a month since she left the place.
Glitch99 said:   petenth said:   Her last day was Aug. 16.  Up to this day they have not send her last paycheck.  She has talked to the supervisor last week and said that he will mail the check last Saturday but up to this day she has not received the check. 
Please clarify - do they always mail the paychecks, or are they typically distributed in-person? The law typically requires the paychecks be made available as per standard procedure - meaning the check quite likely has been sitting there waiting patiently to be picked up. In that case, the supervisor offering to mail it to her is little more than a courtesy, and nothing binding you can hold them to.

Dont always assume the worst.
 
  

If checks are handed directly to the employees and the employer claims the check was waiting for her since before the time limit, compare the check number with coworkers' pay stubs to determine approximately when the check was actually printed.

 

petenth said:   The check is distributed every 2 weeks and the employer promised to mail it last Saturday and it has been 7 days since he mailed it. Usually takes 2 or 3 days the most.
You completely avoided the question, so I'll assume I'm correct - the checks are normally picked up at the center, and your sister's "missing" check has been sitting there for a month waiting for her to go get it. The supervisor "promising" to mail it to her is nothing more than a favor, and is in no way required, and adds absolutely nothing to your argument.

Glitch99 said:   
petenth said:   The check is distributed every 2 weeks and the employer promised to mail it last Saturday and it has been 7 days since he mailed it. Usually takes 2 or 3 days the most.
You completely avoided the question, so I'll assume I'm correct - the checks are normally picked up at the center, and your sister's "missing" check has been sitting there for a month waiting for her to go get it. The supervisor "promising" to mail it to her is nothing more than a favor, and is in no way required, and adds absolutely nothing to your argument.


OP confirmed his sister lives in CA.  Per the CA law quoted previously in the thread, the employer was required to pay on the employee's last day unless she didn't give at least 72 hrs notice (in such cases the employer has 72 hrs to pay).  Additionally, the employer must mail the check if requested, and the postmark date is considered the "payment" date.

There is no employer courtesy/favor in this case.  Regular pay-periods/payment dates are irrelevant.

Glitch99 said:   petenth said:   The check is distributed every 2 weeks and the employer promised to mail it last Saturday and it has been 7 days since he mailed it. Usually takes 2 or 3 days the most.
You completely avoided the question, so I'll assume I'm correct - the checks are normally picked up at the center, and your sister's "missing" check has been sitting there for a month waiting for her to go get it. The supervisor "promising" to mail it to her is nothing more than a favor, and is in no way required, and adds absolutely nothing to your argument.


The employer never contacted my sister about a check waiting in the office No communication at all. Her last day the employer informed her that they willl mail her check and that was last month

Waiting time penalty pursuant to Labor Code §203.

Small claims will likely be highly more time-efficient.  With the DSLE you have to do a mediation, have a hearing... then apply to the Superior Court to turn the award into a judgment.  Small claims you can just get the judgment in one fell  swoop, as long as they don't appeal for a trial de novo.

IANYL

I had this happen to me in California and I was awarded another 30 day wages by the labor commissioner! Your sister is still "on the clock" for every day they take before giving her her final paycheck, up to a 30 day maximum penalty.

advice is state specific

In California, I would recommend she do nothing at this time.  The longer they take to pay, the more she can collect in penalties.

BradMajors said:   advice is state specific

In California, I would recommend she do nothing at this time.  The longer they take to pay, the more she can collect in penalties.

  
I thought there was a 30 day cap, and they're almost at 30 days already.

BradMajors said:   advice is state specific

In California, I would recommend she do nothing at this time.  The longer they take to pay, the more she can collect in penalties.

  Wrong answer.

If there are already Labor Code §203 violations... you know that a good wage & hour attorney could find some pretty serious violations in such a "not so professional environment."  That is like describing a quaint undefended English fishing village to a group of Vikings... who have a statutory incentive to attack pursuant to Labor Code §2699.

Is it advisable to go dept of labor or give them time to work it out
my sister is concern about bad reference or burning bridges. Maybe even future employment as the economy is not good for young people.

petenth said:   Is it advisable to go dept of labor or give them time to work it out
my sister is concern about bad reference or burning bridges. Maybe even future employment as the economy is not good for young people.

 
just because the economy isn't excellent doesn't mean she should just wait and be taken advantage of.
i am confident i can get a job anywhere in my city doing what i do. it's up to you (well, her) to decide what the best course of action to take is. IMO this does not sound like a great reference or a very important bridge to worry about. if it were me, i would go straight to the labor department. but if she is not so confident and worried about finding work or references, she may want to think twice.

petenth said:   Is it advisable to go dept of labor or give them time to work it out
my sister is concern about bad reference or burning bridges. Maybe even future employment as the economy is not good for young people.

  That's understandable.  Does she have another colleague there who she could use as a reference? Someone who is mature, responsible, and could serve - perhaps - as a point of contact for potential future employers (especially in case this now former employer goes under)?

Crazytree said:   If there are already Labor Code §203 violations... you know that a good wage & hour attorney could find some pretty serious violations in such a "not so professional environment."  That is like describing a quaint undefended English fishing village to a group of Vikings... who have a statutory incentive to attack pursuant to Labor Code §2699.
  PROTIP: There is only one qualified California employment lawyer in this thread.

<-------------------------------------------------------

It's actually called the Division of Labor Standards Enforcement (of the California Department of Industrial Relations).  She is owed a couple thousand dollars in penalties under §203.  They can screw her on the references... but their lawyers are going to advise them to be nice to her to avoid a potential class-action or mass-tort catastrophe related to their moronic wage & hour violations/practices.

IANYL

All she has to do is complain to California labor board and trust me she will get paid quick.. No employer wants to deal with the labor board headache and the penalties involved.

If they pay every two weeks, and she was paid minimum wage ($10 in California), how can she be owed $900? After taxes to be owed $900 would mean that she worked overtime each week and amassed like 50 hours a week? Is that correct?

EradicateSpam said:   If they pay every two weeks, and she was paid minimum wage ($10 in California), how can she be owed $900? After taxes to be owed $900 would mean that she worked overtime each week and amassed like 50 hours a week? Is that correct?
 
If they paid at the end of week 2, you'd be right.
But that would require running payroll on hourly workers while they were still working for that pay.
More likely they pay for weeks 1 and 2 at the end of week 3, so on payday you'd be owed 3 weeks' pay.

EradicateSpam said:   If they pay every two weeks, and she was paid minimum wage ($10 in California), how can she be owed $900? After taxes to be owed $900 would mean that she worked overtime each week and amassed like 50 hours a week? Is that correct?
 

  She worked 10 hours extra on Saturday and Sunday but she is really not asking for overtime.  She just wanted extra hours for the 2 weekend to maximize her earnings.  She was grateful for those weekend assignment so she can earn more money for school during the summer.  She wasn't expecting this outcome thats why she patiently wait for the pay period but when she moved back to college and contacted the employer after the second week after she seperated from them the supervisor said no problem we can mail the check to you.  That was a week and half ago.  She is now worried that they might not even pay her for the right amount. 

shakabuku said:   
petenth said:   Is it advisable to go dept of labor or give them time to work it out
my sister is concern about bad reference or burning bridges. Maybe even future employment as the economy is not good for young people.

  That's understandable.  Does she have another colleague there who she could use as a reference? Someone who is mature, responsible, and could serve - perhaps - as a point of contact for potential future employers (especially in case this now former employer goes under)?

  There is only one supervisor there who is running the whole place.

Don't forget to keep the final paycheck stub (when it's received) and compare it to the W2 numbers in January.

Something similar happened to me. When someone from the Department of Labor called them and left a message my check was in the mail the very next day. Most business owners (also the ones that only run the businesses) are selfish pricks that think that they can get away with anything. Once the law shows their muscle they coward and bow down to them. This is a very good example why we need government and unions in our workplace. Without these safeties we all would be screwed...

petenth said:   
EradicateSpam said:   If they pay every two weeks, and she was paid minimum wage ($10 in California), how can she be owed $900? After taxes to be owed $900 would mean that she worked overtime each week and amassed like 50 hours a week? Is that correct?
  She worked 10 hours extra on Saturday and Sunday but she is really not asking for overtime.  She just wanted extra hours for the 2 weekend to maximize her earnings.  She was grateful for those weekend assignment so she can earn more money for school during the summer.  She wasn't expecting this outcome thats why she patiently wait for the pay period but when she moved back to college and contacted the employer after the second week after she seperated from them the supervisor said no problem we can mail the check to you.  That was a week and half ago.  She is now worried that they might not even pay her for the right amount. 

  
She doesn't need to ask for overtime.  She is entitled, and legally mandated, to be paid at the overtime rate.  If she decides to pursue this with the labor board, she should mention this overtime as well as any past overtime she might have worked but wasn't paid time and a half for.

I strongly recommend that she pursue this issue.  What good is a possible future good reference when she can't pay her bills now?  If she gets taken advantage of now, she'll continue to get taken advantage of for her entire life.  She only worked there for the summer, it's not like it was a 5 year job that is related to her future career.  Heck, if they can't come up with the money to pay her what she's owed (at minimum wage), in 6 months the place might be out of business and there will be no possibility of contact for a reference anyway.  If she needs to provide a reference, she should use a coworker or client (parent of a child - I'm sure she has at least one that would vouch for her).

civ2k1 said:   
petenth said:   
EradicateSpam said:   If they pay every two weeks, and she was paid minimum wage ($10 in California), how can she be owed $900? After taxes to be owed $900 would mean that she worked overtime each week and amassed like 50 hours a week? Is that correct?
  She worked 10 hours extra on Saturday and Sunday but she is really not asking for overtime.  She just wanted extra hours for the 2 weekend to maximize her earnings.  She was grateful for those weekend assignment so she can earn more money for school during the summer.  She wasn't expecting this outcome thats why she patiently wait for the pay period but when she moved back to college and contacted the employer after the second week after she seperated from them the supervisor said no problem we can mail the check to you.  That was a week and half ago.  She is now worried that they might not even pay her for the right amount. 

  
She doesn't need to ask for overtime.  She is entitled, and legally mandated, to be paid at the overtime rate.  If she decides to pursue this with the labor board, she should mention this overtime as well as any past overtime she might have worked but wasn't paid time and a half for.

I strongly recommend that she pursue this issue.  What good is a possible future good reference when she can't pay her bills now?  If she gets taken advantage of now, she'll continue to get taken advantage of for her entire life.  She only worked there for the summer, it's not like it was a 5 year job that is related to her future career.  Heck, if they can't come up with the money to pay her what she's owed (at minimum wage), in 6 months the place might be out of business and there will be no possibility of contact for a reference anyway.  If she needs to provide a reference, she should use a coworker or client (parent of a child - I'm sure she has at least one that would vouch for her).
 

  Thank You looks like we will go the Department of Labor route.  I can't believe this still happens. She did everything in that place, all around person watchng the kids, cleaning up and closing maintained a great relationship with the supervisor. They were very close until she asked for her last check. Its like jeckyll and hyde.  My sister maintained her professionalism throughout and was loved by many parents.  The parents even invited her to the kids personal b'day parties and plead with her not to miss the parties.   

How about this... call the supervisor up a few more times? That is the most likely way to get it resolved - fast.

The Dept. of Labor route will take time and interaction - something I'm betting your sister doesn't want to deal with... call the person up each day for a few days and see if that doesn't get the check mailed.

slappycakes said:   How about this... call the supervisor up a few more times? That is the most likely way to get it resolved - fast.

The Dept. of Labor route will take time and interaction - something I'm betting your sister doesn't want to deal with... call the person up each day for a few days and see if that doesn't get the check mailed.

  The supervisor now will not answer phone or entertain any communication with my sister which is mind boggling. 

petenth said:   
slappycakes said:   How about this... call the supervisor up a few more times? That is the most likely way to get it resolved - fast.

The Dept. of Labor route will take time and interaction - something I'm betting your sister doesn't want to deal with... call the person up each day for a few days and see if that doesn't get the check mailed.

  The supervisor now will not answer phone or entertain any communication with my sister which is mind boggling. 

  Not so mind boggling.  Once the employer didn't pay on the last day (or within 3 days if your sister didn't give notice), then all bets were off.  I'd guess your sister knows about some other regulations the daycare is violating too (staff to child ratio too low, not enough licensed employees, etc).  I'd suggest once she gets her money that she should report those issues to the appropriate authorities.

BTW, did your sister give at least 72 hrs notice that she was quitting?  Just curious because then it's even more egregious in my mind since they should have paid her in person on her last day.

civ2k1 said:   
petenth said:   
slappycakes said:   How about this... call the supervisor up a few more times? That is the most likely way to get it resolved - fast.

The Dept. of Labor route will take time and interaction - something I'm betting your sister doesn't want to deal with... call the person up each day for a few days and see if that doesn't get the check mailed.

  The supervisor now will not answer phone or entertain any communication with my sister which is mind boggling. 

  Not so mind boggling.  Once the employer didn't pay on the last day (or within 3 days if your sister didn't give notice), then all bets were off.  I'd guess your sister knows about some other regulations the daycare is violating too (staff to child ratio too low, not enough licensed employees, etc).  I'd suggest once she gets her money that she should report those issues to the appropriate authorities.

BTW, did your sister give at least 72 hrs notice that she was quitting?  Just curious because then it's even more egregious in my mind since they should have paid her in person on her last day.

  She gave them 2 weeks, 1 week, as it get close, to  5  then 3, 2 days of leaving reminded him again.  It was like a count down.  ,Thanked him for everything and express the wonderful experience she had working there.  Even ask if she can keep in touch with them while she is at school.  She left in good terms. 

petenth said:   
civ2k1 said:   
petenth said:   
slappycakes said:   How about this... call the supervisor up a few more times? That is the most likely way to get it resolved - fast.

The Dept. of Labor route will take time and interaction - something I'm betting your sister doesn't want to deal with... call the person up each day for a few days and see if that doesn't get the check mailed.

  The supervisor now will not answer phone or entertain any communication with my sister which is mind boggling. 

  Not so mind boggling.  Once the employer didn't pay on the last day (or within 3 days if your sister didn't give notice), then all bets were off.  I'd guess your sister knows about some other regulations the daycare is violating too (staff to child ratio too low, not enough licensed employees, etc).  I'd suggest once she gets her money that she should report those issues to the appropriate authorities.

BTW, did your sister give at least 72 hrs notice that she was quitting?  Just curious because then it's even more egregious in my mind since they should have paid her in person on her last day.

  She gave them 2 weeks, 1 week, as it get close, to  5  then 3, 2 days of leaving reminded him again.  It was like a count down.  ,Thanked him for everything and express the wonderful experience she had working there.  Even ask if she can keep in touch with them while she is at school.  She left in good terms. 

  Then the guy is a scumbag.  If she hadn't given notice, then he *might* have been able to claim/lie he had a check ready for her in the 72 hr period but she never instructed what address to send to.  Since she gave prior notice, he has no excuse for not paying her immediately on her final day.  This is a slam dunk, as long as he has the funds to pay her.

in some states if wages are not paid then the state will go after the employer. has she called the appropriate state agency to inquire?

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