Failure to pay you every dollar you’ve earned is not a “payroll error.” It’s wage theft. California has strong worker protection laws, but employers still find creative ways to short their workers. This can include missing overtime, off-the-clock work, illegal deductions, misclassification, skipped breaks, late final pay, and more.
If your paycheck feels wrong, your instincts are probably right. Below, we will guide you through the most common warning signs, what the law requires, how to document a wage theft claim, and how to recover your money without risking termination for speaking out.
What Is Considered Wage Theft?
The term “wage theft” refers broadly to any practice that deprives an employee of wages or benefits they have earned and are entitled to under the law. In California, common types of wage theft include the following:
- Failure to pay overtime. Subject to some exemptions, most hourly employees are entitled to time and a half for any hours worked over eight in a day or 40 in a week, as well as double-time for any hours worked over 12 in a day.
- Off-the-clock work. An employer must pay for any work, including opening and closing, sending and receiving emails, preparing and cleaning up, and putting on and taking off protective gear, required before an employee clocks in or after an employee clocks out.
- Meal and rest break violations. Missed, shortened, or interrupted meal and rest breaks without premium pay are violations.
- Shaving or rounding of time only in the employer’s favor. The employer is not allowed to “adjust” start and stop times or round times in a way that, over a period of time, only cuts employees’ pay.
- Illegal deductions. Employers may not charge an employee for uniforms, breakage, shortages, walkouts, or other penalties or costs that are not permitted by law.
- Misclassification as an independent contractor or “exempt” employee. Classifying a worker as “exempt” from overtime, meal and rest breaks, payroll taxes, and other rules — or as an independent contractor — when in reality the individual does nonexempt work and is an employee by law is illegal.
- Tip theft. It is unlawful to charge a tip credit, pay a manager or supervisor a share of tips, or “skim” credit-card processing fees on tips due to employees.
- Unreimbursed expenses. Failing to pay an employee for business costs (e.g., mileage, required phone or internet usage for work, or tools) that the law requires to be reimbursed is a violation.
- Late or missing final pay. Under California law, an employer generally must pay all final wages (including accrued but unused vacation or PTO) immediately upon termination, and an employee who quits must be paid all final wages within 72 hours (or at the time of quitting if the employee provides 72 hours’ notice).
Subtle Signs Your Pay Is Being Shorted
Wage theft is not always as blatant as the categories mentioned above — it can be more subtle. Here’s what to look for:
- Paychecks that never match your own time log. Some payroll systems may have errors, but if you rarely (if ever) see the exact pay you earned for time worked, you are likely being shortchanged.
- “Automatic” 30-minute lunch deductions. If your check shows auto-deducted lunches, even on days you worked through or ate at your workstation, this is problematic.
- Salaried employees with mostly nonexempt duties. If your primary duties are routine or production-based and you have no other duties sufficient to exempt you, or you do not supervise two or more full-time employees or make high-level business decisions, being “salaried” does not automatically mean “exempt.”
- New title but no change in actual duties. This is a common tactic: You suddenly become a “lead,” “assistant,” or “manager,” but nothing about your work has changed except your loss of overtime or other benefits.
- Told not to record certain tasks. If you’re ever told to “clock out and finish this,” or “training is unpaid,” these are red flags that indicate the employer is not keeping accurate time records.
- Tip pools. Watch to see if these pools include supervisors or unexplained “house fees.”
- Paying for work-related items. Take note if you are expected to pay for your own mileage, phone or internet plan, or tools without reimbursement.
California Rules That Matter Most
Of course, we don’t expect you to memorize the law or the applicable Code sections, but it helps to know the following key principles to understand if you have been shorted on pay:
- All hours worked must be paid. If the employer knows or should know the employee is working, it is payable time.
- Overtime is based on daily and weekly thresholds. Both apply in California, unlike in some states.
- Meal and rest breaks are mandatory for most nonexempt workers. Employers can’t simply skip payroll recordkeeping of breaks. Missed, late, or on-duty breaks typically trigger a premium pay penalty.
- Accurate records are the employer’s responsibility. Missing or sloppy time records are not normally held against the worker.
- Employees can discuss pay. You have a right to ask coworkers how much they are paid; retaliation for doing so is illegal.
- Contractor vs. employee uses the “ABC” test. If the company has control over your work and you are engaged in the company’s core business, you are likely an employee.
How To Document a Wage Theft Claim (Without Making Waves)
Quietly (and legally) protect yourself. Consider doing the following:
Start your own time log. Use a notes app, spreadsheet, or even a calendar to record start and stop times, breaks, work locations, and general tasks. It can even be handwritten, but be as detailed as possible.
Save your pay stubs, schedules, timesheets, chat threads, and emails. Print or screenshot punch records, scheduling apps, and shift exchange chats.
Track expenses you are required to incur for work. Mileage, phone and internet bills, and tools are commonly kept off the books and put on the worker.
Take notes on potential witnesses. Who saw you working through your lunch break? Who is paid overtime for the same role? Take notes as much as possible.
Keep everything off company devices if possible. You do not want to get in trouble for taking proprietary trade secrets, customer lists, and other sensitive information.
Write down retaliatory incidents. This includes cut hours, sudden write-ups or discipline, and changes in shifts. Write down the what, when, where, and with whom, and keep a log of names and dates.
Your Options To Recover Unpaid Wages
You have multiple options for recovering your unpaid wages. The best one for your situation depends on the amount, deadlines, and whether it is just you or also your coworkers. While this is not an exhaustive list, here are some options that may be available to you:
- File a civil lawsuit for unpaid wages, overtime, break premiums, reimbursement, interest, penalties, and attorneys’ fees.
- File a Private Attorneys General Act (PAGA) representative action to address systemic violations affecting groups of workers.
- File a class action lawsuit if many employees have been affected by the same underpayment scheme.
Please note that wage claims must be filed within certain legal deadlines. These deadlines vary depending on the type of claim and the penalties involved. Because timing can be critical, you should consult an attorney promptly to confirm which deadlines apply to your situation.
Let Us Help You Get the Wages You Are Owed
Want help calculating what you are owed and the best path to recovery? One of our skilled California employment lawyers can review your job duties, pay, and records, obtain the employer’s records, pursue penalties and attorneys’ fees, and take action to protect you from retaliation while you get every dollar you’ve earned. Contact us to discuss the specifics of your case.
