What is wage theft in San Diego and across California?  What should California employers know about our state’s perception of this topic and associated enforcement strategies?

Key Takeaways Regarding What is Wage Theft in San Diego and Across California

• California requires employers to provide workers and employees with specific information about their hours, wages, and other employment information.
• The term “wage theft” was used by California legislators and State Agencies to describe the impact of employers who fail to understand and/or comply with the extensive burdens, legal, and reporting requirements placed upon California employers and California’s extensive employment and payroll laws.  It has become an offensive and derogatory term.
• Wage and hour litigation and unpaid overtime are two of the most common forms of employment defense and employer defense required in California.  California and San Diego employers constantly face legal issues, disputes, lawsuits and even Private Attorneys General Act or PAGA actions attempting to intimidate and penalize employers, reducing profits and future employment opportunities.

The Wage Theft Protection Act

What is wage theft in San Diego and across California?  Why is wage theft a common concern for every California employer?  California originally passed the Wage Theft Prevention Act of 2011 (effective Jan 1, 2012) requiring employers to provide employees and workers specific information about their wages and other employment-related information.  The term “wage theft” itself was originally used to describe employers who failed to understand all the nuances, complex details, reporting requirements and application of California employment and payroll laws.  The concern is to ensure workers provide full wages for every hour worked.  Unfortunately, it has become widely overused as a derogative term to paint employers in a negative light when pay-related employee disputes arise.

Since the inception of the original law, the state has added several measures to strengthen their efforts regarding “wage theft.”  Unfortunately, wage and hour litigation and unpaid overtime lawsuits have become commonplace here in San Diego, and across the State of California.  Questions surrounding what is wage theft in San Diego has now expanded to include Private Attorneys General Act or PAGA actions as well as requirements to pay the legal expenses of the Labor Commissioner as well as a fee of $100 per day (up to $20,000) if an employer willfully refuses to comply with an associated Court order.

So What is Wage Theft in San Diego and Southern California

So, back to our original question – what is wage theft in San Diego and across California and what do employers need to be aware of and concerned about?  Generally speaking, wage theft allegations are usually associated with wage and hour violations associated with paying workers less than minimum wage for work performed or requiring “off-the-clock” work, failure to make appropriate compensation for overtime and/or failing to provide appropriate meal and/or rest breaks.

This includes issues associated with “piece work” or “piece rate” pay violations, as well as the misclassification of workers as independent contractors.  Recent substantial changes in California law have established the presumption that all workers in California a presumed to be employees, and the legal burden of proof falls on the employer to prove otherwise.  California’s A-B-C test for workers requires that independent contractors are free from control and direction over performance of work, and, that the work provided is outside the usual course of the business for which the work is performed, and, that the worker is customarily engaged in an independently established trade, occupation or business.”

Simple math errors, or accounting issue can result in a potential employment defense of a PAGA action designed to pursue an employer for tens if not hundreds of thousands of dollars.

Pro-Tip: “That’s how you take a mistake on the way somebody drafted someone’s paycheck in the tune of, let’s say $15 a week. That puts you in a class action that costs you three, $400,000 because of a counting error because they went into a class action. Now, had you had certain types of agreements in place, even some kinds of arbitration agreements, that’s where we’re at now on these laws. You could have cut this off also, had you had some lawyer you could talk to about your procedures or maybe an outside accounting service to review it or a CPA or our HR person, someone you can call.

Fast action in any of these matters is the key. Pick up the phone and call us the second that you think something’s going on. Why does that matter?

Judges don’t really like these cases, and there’s a lot of technical reasons to throw them out because they’re turning into sort of a shady PI lawyer, the person that hangs out in the hospital room. These kind of employment lawyers are starting to be like that. And so if they don’t follow all the rules and you get to court in the first couple of months and you file a motion saying you didn’t give the proper notice, you didn’t state the proper cause of action, judge will throw it out.

We can also help you to take immediate steps to mitigate the challenge, or remediate it altogether.  If you know ahead of time, or we can find out about a potential lawsuit that is brewing, we have the employer come in and say, ‘no, no, no, don’t pay us all this money. Pay the extra $3,000 in wages. Send out amended pay stubs before you even have to answer the complaint.’ And guess what? All of the causes of action that have attorney’s fees in them are gone. Nobody wants to see you anymore because of that. So yeah, quick action gives your lawyer the right to do things that just destroy a case in the beginning.

Call us, and you describe what’s going on with a certain troubled employee. And we can tell you, ‘oh, that fact scenario doesn’t really fit something that I would go ahead and fight with them,’ or we can say, ‘oh, this one looks bad because of the things they’re complaining about or just the general facts. I would handle it this way.’ And so you can turn a 20, $30,000 lawsuit situation into empowerment where you can stand your ground or maybe you make some concessions because you got some advice from your lawyer. You need to know when you’ve got to worry about it and when you don’t.” – Dan Watkins, Founding Partner

Proven San Diego Wage Theft Defense Attorneys

Wage theft claims usually begin the filing of a complaint by an employee (or former employee) or when a terminated independent contractor files for unemployment.  In addition, plaintiffs attorneys are actively advertising for employees who feel they have a valid wage-related claim.

What is wage theft in San Diego and Southern California?  It is a wage-related issue when an employee accuses an employer of not paying them appropriately for the work performed.  If you are an employer and you have received notice from the Labor Commissioner’s office, any state or federal agency, a law firm or consumers advocacy group or been asked to provide information on an employee you need to take immediate action and contact the San Diego employer defense attorneys at the Watkins Firm.  There is no cost for our initial consultation and we can help to diagnose the situation and the potential strategies which might be available to you to immediately remediate or reduce your risk and limit legal and financial exposure.

We invite you to review our podcast Episode 39 – What Keeps Employers Up at Night as well as the strong recommendations of our clients and contact the Watkins Firm or call 858-535-1511 for a complimentary consultation today.

Meet Dan Watkins:

Daniel W. Watkins is a true people person who sincerely listens. He cares about things that occur in other people’s lives. Dan enjoys digging into the facts and finding creative solutions to problems. He is not shy about giving his opinion either.

Dan’s interest in people make him deeply invested in every relationship and his exuberant personality makes him a true litigator. Dan fights for his clients with a fierce and calculated commitment.

Dan has practiced in the areas of business, medical practices and healthcare business, high tech/science, real estate and employment defense law since 1987. He is a seasoned litigator and true trial attorney with over 50 jury and bench trials to his credit. Dan has successfully represented both large companies and individuals and achieved substantial victories in well-publicized trials throughout California and the U.S.

He is experienced in business and corporate formation and administration, as well as all forms of alternative dispute resolution, including binding arbitration and mediation.

THE ROAD TO BECOMING A BUSINESS LAWYER AND LITIGATOR

Dan has almost 40 years of experience working with, for and against some of the largest insurance companies in the country. He has successfully tried and litigated cases in the areas of Healthcare Compliance, Commercial Litigation, Unfair Business Practices, Fraud, Breach of Contract, Battery, Premises Liability, Product Defect, Medical Malpractice, Discrimination, Sexual Harassment, Construction Defect, as well as Unfair Competition, Defamation, and Trade Secrets.

In December 2003, Dan commenced litigation against Health South Surgery Centers-West, Inc and its’ subsidiaries, exposing the company’s extensive mismanagement and misconduct of its’ surgery centers. Dan has also been asked by some of California’s largest municipalities and corporations to conduct legally required investigations into matters involving alleged employment discrimination and harassment.