What's Your Unpaid Wage Claim Worth in California?

Learn to calculate what you’re owed in unpaid wages and penalties in California.

The federal Fair Labor Standards Act sets the minimum rules employers must follow in all states. However, states are free to pass laws that provide additional protections for employees, and many states, including California, have done so. In fact, when it comes to wages, California might be the most protective of employees in the nation. If your employer has failed to pay you all you’ve earned in a timely fashion, you may be entitled to recover not only your unpaid wages, but also penalties intended to punish your employer for wage violations.

Common Wage Violations in California

Among other things, employers may violate wage and hour laws by:

  • paying employees less than the minimum wage per hour
  • failing to pay employees for every hour worked
  • failing to pay overtime, and
  • failing to pay employees for breaks during the workday.

Minimum Wage Violations

Employees are entitled to the highest applicable minimum wage where they work, whether that’s the federal, state, or local rate. California’s minimum wage is significantly higher than the federal minimum wage of $7.25. (California's minimum wage is often increasing; see our article on California wage and hour laws for the current rate.) Some cities, such as San Francisco, have even higher minimum wage rates.

To calculate your unpaid minimum wage claim, simply take the difference between you were actually paid per hour and what you should have been paid per hour, then multiply that amount by the total number of hours you worked. For example, if your employer paid you $8 per hour instead of $11 per hour for your first two weeks of full-time work, you would be entitled to an additional $3 per hour for each of your 80 hours of work, or $240 ($3 × 80).

In certain states, employers may pay employees a wage lower than minimum wage if the employee receives enough in tips to make up the difference (called a “tip credit”). However, California does not allow a tip credit. If you receive tips as part of your compensation, you are still entitled to the full minimum wage for each hour you work. Learn more about California’s rules for tipped employees.

Unpaid Overtime

Failing to pay employees properly for overtime work is one of the most common wage violations by employers. In California, employees are entitled to time-and-half if they work more than eight hours in a day or 40 hours in a week; they are also entitled to time-and-a-half for the first eight hours on their seventh consecutive workday. Employees are entitled to double time for any hours worked beyond 12 in a workday and for any hours worked beyond the first eight on their seventh consecutive workday.

Not all employees are entitled to earn overtime. While hourly, nonexempt employees have a right to overtime, other categories of employees are exempt. The most common exemptions are for outside salespeople and “white-collar” employees who do professional, managerial, and high-level administrative work (see our overtime page for more details and other exemption categories). Unless your employer can prove that you fit into one of these narrow exemptions, you are entitled to overtime.

If your employer has failed to pay you for overtime hours, you are owed the difference between what you should have been paid and what you were paid. Time-and-a-half pay means that you’re entitled to 50% of your hourly rate, on top of your regular pay. For example, if you are usually paid $12 an hour, you should be paid $18 an hour. And, double time pay means you are entitled to twice your regular rate of pay.

Example: Bob usually earns $16 an hour. His employer pays him at his regular rate for all hours worked. He worked ten hours on Monday, 14 hours on Tuesday, and four hours each on Wednesday, Thursday, and Friday. Because he worked only 36 hours in the week, he isn’t entitled to weekly overtime. But, because he worked more than eight hours on Monday, he is entitled to time-and-a-half for two hours (an extra $8 × 2 hours = $16). Bob also worked more than eight hours on Tuesday. He’s entitled to time-and-a-half for the eighth to twelfth hour (an extra $8 × 4 hours = $32). He is also entitled to double pay for the twelfth to fourteenth hours on Tuesday (an extra $16 × 2 = $32). Bob has a total unpaid overtime claim of $80.

Unpaid Breaks and Time Off

Federal law doesn’t give employees the right to take meal or rest breaks during the workday. However, if your employer lets you take breaks, you may be entitled to pay for that time. You are entitled to be paid your regular wages for:

  • any short breaks (lasting 20 minutes or less) during the workday, and
  • any time during which you must work, even if your employer calls it a break. For example, if an office receptionist must eat lunch at his desk in order to cover the phones and accept deliveries, he is entitled to be paid for that time – even if his employer calls it a “lunch break.”

California gives employees the right to a 30-minute unpaid meal break and a paid ten-minute break for every four hours (or major fraction of four hours) worked. If you didn’t receive these state-required breaks, you are entitled to a penalty; see “Penalties for Unpaid Wages,” below.

To calculate your unpaid break wages, add up how much time you spent on shorter breaks that should have been paid or breaks that you had to work through. Multiply this extra time by your hourly rate. And don’t forget overtime: Breaks for which you should have been paid count as hours worked, which means they may push your total hours for the week above the daily or weekly overtime standard.

Paid Sick Leave

California law also requires employers to provide paid sick leave to employees, starting in July of 2015. Employees are entitled to earn one hour of paid sick leave for every 30 hours worked; for details about the law, see our article, California Passes Paid Sick Leave Law. If your employer doesn’t allow you to accrue or use paid sick leave, you are entitled to be paid for any time you had to take unpaid.

Penalties for Unpaid Wages

In addition to the actual wages you should have been paid, you may be entitled to collect penalties. In California, the penalties available for unpaid wage claims include:

  • Meal period violations: one hour of pay for each day that you missed one or more meal periods.
  • Rest break violations: one hour of pay for each day that you missed one or more rest breaks.
  • Liquidated damages: a sum equal to the amount of your unpaid wages (for minimum wage violations only).
  • Paystub violations: penalties for your employer’s failure to provide certain required information about your wages and hours on your paystub. You can collect $50 for the first violation and $100 for each subsequent violation, up to a total of $4,000.
  • Waiting time penalties: penalties for your employer’s failure to pay you on time when you separate from the company. You are entitled to your average daily wage for each day that your employer is late paying your wages, up to a maximum of 30 days (these damages are available only to former employees, not current employees).
  • Sick leave violations: administrative penalties for your employer’s failure to provide paid sick leave. You can receive either three times the value of the paid sick leave withheld or $250, whichever is greater, up to a total of $4,000. If you suffered other harm as a result of the sick leave violation, such as being fired, you can receive an additional $50 per day, up to a maximum of $4,000.

Filing a Wage Claim or Lawsuit

If your employer failed to pay you all of the wages you earned, you can either file a wage claim with the California Labor Commissioner’s Office or file a lawsuit in court. You can find instructions on filing a wage claim, including the form you’ll need to use (with instructions), at the Labor Commissioner’s How to File a Wage Claim page.

If you aren’t comfortable filing a claim on your own behalf, or you have a large or complicated wage claim, talk to an experienced California wage and hour lawyer about representing you. A lawyer can file a wage claim on your behalf with the Labor Commissioner’s Office or file a lawsuit in court seeking to collect your unpaid wages. If you win your lawsuit, your attorney can ask the judge to make your employer pay your attorneys’ fees.

Whether you plan to file a wage claim or file a lawsuit, you should move quickly. In California, you have up to three years to file a lawsuit based on violation of a statutory right, such as your right to overtime, breaks, or minimum wage. The same time limit (called a “statute of limitations”) applies to penalties for violating these rights. If your lawsuit is based on a contract (for example, your employer promised to pay you $15 an hour but paid you only $10), you have four years to sue if the contract was written and only two years if the contract was oral. To be safe, it’s best to pursue your claim as soon as you become aware that you’re owed unpaid wages.

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