CA Former employer still owes me money after 2 months, am I entitled to waiting time penalties?

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CA Former employer still owes me money after 2 months, am I entitled to waiting time penalties?

I recently quit a full time W2 job at a post production facility due to being fed up
with bounced checks and late payments, we were all also taken off of payroll
and started being paid cash in strange sums so he potentially made us 1099
without our knowledge. When I quit, I was owed over 7,000. About a week
later I collected on about 3,000. However its been a couple months now and I
am still owed about 2,000. My former employer has conceded that he’s having
financial problems and has stopped responding to my followups asking for the
rest of the money that I’m owed.

So my questions are this

1 Since I was not paid out in full by 72 hours after quitting, I understand that I
am entitled to a waiting period penalty of up to 30 days of my day rate. I never
signed any kind of contract when I started but I have pay stubs reflecting my
rate of 350 per day. Is there anything that I need to watch out for that he may
try to defend against?

2 During the past year of employment when payments started being late and
such I often did not have much to work on. My employer started another
company, was very focused on that and not on bringing in new clients and work.
I still showed up to work 9-5 as usual but I’m worried that he may try to argue
that I don’t deserve the compensation because I wasn’t doing anything. Is there
any basis to that defense? Things were very casual and I would often leave to
get coffee or go get lunch rather than taking a strict 30 minute lunch break. I
would also sometimes come in at 930 and then leave at 5, but only ever if there
was no work to finish up. Can any of that be used against me?

3 I’m considering sending him an email outlining that I want the wages I am
owed in addition to the 30 day penalty that I’m entitled to within 30 days or else
I will file with the labor board. Is there any reason I should not do this?

4If all goes to plan, and I am awarded the penalty as well as my back wages,
what happens if he doesn’t have the money and the company is Inc. ? Is this all
for nothing?

I’m ultimately really torn and guilty feeling about the whole thing and I feel like
maybe I’m being greedy for trying to get my backpay in addition to the waiting
time penalties. If I go through with it, I just want to make sure there is nothing he
can use to negate my argument.

Asked on September 23, 2016 under Employment Labor Law, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

1) It's not a defense that you were (hypothecially) a bad or lazy or sometimes absent worker--those are all grounds to fire you, of course, but if you were not fired and he let you work, he owes you the pay for that time. (If an hourly worker left earlier or came in late, then that reduces the hours he/she is to be compensated for, but does not obviate the need to pay for the hours worked.)
2) The biggest hurdle is that if the business you worked for was an LLC or corporation, you can *only* recover money from the LLC or corporation--and if that entity is insolvent or has been dissolved (i.e. has no money or doesn't exist any more) then you won't get your pay, even though you are legally entitled to it. An LLC or corporation owner is not personally liable for the business debts, so you only have recourse against the business. (Technically, if you believe that the LLC or corporation was just a sham or shell and the owner "comingled" or mixed personal and business finances, you can, if you sue him, try to "pierce the corporate veil" and show that he should be held personally liable, but this is very difficult and *very* rarely works)
2a) If the business was not an LLC or corporation, you can sue him personally.
3) Why not file right away? What does sending him another communication and giving him more time do, when it's obvious he's not going to pay, but give him more time to try to move assets out of the business, dissolve or close the business, etc.?


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