FAQs - Late Payment of Wages
What is AB 673 and what does it do?
AB 673 is a bill the Governor signed into law in 2019 which amended Labor Code section 210 to allow an employee to recover statutory penalties for late payment of wages while still employed. Labor Code section 210 had always allowed for recovery of civil penalties payable to the State for late payment through a civil action, including through a Private Attorneys General Act (PAGA) action. Labor Code section 210 still provides for the civil penalties that go to the State, but now also provides that an employee can recover the entire penalty for themselves through the Labor Commissioner’s wage claim process.
- What is the difference between a statutory penalty and a civil penalty?
- What constitutes a late payment violation under the law?
- Does the penalty apply if different types of wages are paid late?
- Does the statutory penalty payable to the employee apply when payment has been made but the payment is insufficient to meet what the law requires?
- Do Labor Code section 210 penalties apply if an employer fails to pay meal or rest period premium wages?
- When did the amendments to the law allowing for the statutory penalty payment to the employee become effective?
- Do AB 673 and Labor Code section 210 apply to public entities?
- How much is the penalty?
- When does the higher penalty for subsequent violations apply?
- When does the higher penalty for a willful or intentional violation apply?
- What penalties apply if final wages are not timely paid after an employee is terminated or quits?
- What should workers do if their employer does not pay them all the wages they were due by the correct pay date?
Statutory penalties are paid to the employee and civil penalties are paid to the State.
In general, Labor Code section 204 governs regular payment of wages and requires that wages earned are due twice during each calendar month, on days designated in advance by the employer as the regular paydays. Work performed between the 1st and 15th days, inclusive, of any calendar month must be paid for between the 16th and the 26th day of that same month. Work performed between the 16th and the last day of any calendar month, must be paid for between the 1st and 10th day of the following month. An employer who pays employees on a monthly basis, but should have been paying wages twice per month, is therefore subject to a penalty if full payment is not made in compliance with the requirements of Labor Code section 204, as noted above. The penalty is assessed on the day after the last day the law provides for timely payment.
If an employee does not receive full payment of the wages due on the payday designated by the employer in accordance with Labor Code section 204, the payment is late. However, as discussed below, different types of wages, such as final wages or irregular overtime have different payment due dates.
Yes. The late payment penalty could apply to different types of wages that were not timely paid including but not limited to the failure to pay the minimum wage, overtime wages, or vacation wages. Note: Depending on the type of claim, the due date for the wages may vary. For example, wages for unused vacation due at the end of employment pursuant to Labor Code section 227.3 must be paid in compliance with Labor Code section 203. However, if vacation time is taken during employment, vacation wages must be paid in the pay period set forth in Labor Code section 204.
Yes. This is sometimes referred to as the underpayment of wages. All wages are due on the pay day set by the employer, which must also be in compliance with provisions in the Labor Code. If all wages are not properly paid by the due date, the late payment penalties apply.
Yes. Labor Code section 210 penalties apply if meal or rest period premiums are not timely paid. The California Supreme Court held that premium pay for denying an employee a meal or rest break constitutes “wages.” (Naranjo v Spectrum Security Services, Inc. (2022) 13 Cal.5th 93.)
The amendments to Labor Code section 210 became effective January 1, 2020. However, late payment of wages or underpaid wages may be sought for wages due in 2019. In most instances, there is a one-year statute of limitations on the filing of penalty claims under Labor Code section 210.
Yes. However, this only applies to the University of California because that is the only public entity covered under Labor Code Section 204 as of January 1, 2020. Therefore, late payments occurring after January 1, 2020 may be claimed against the University of California.
For any initial violation the penalty is one hundred dollars ($100) for each failure to pay each employee. For each subsequent violation or any willful or intentional violation the penalty is two hundred dollars ($200) for each failure to pay each employee, plus 25% of the amount of wages unlawfully withheld.
The higher penalty for subsequent violations will apply after notice to the employer of a previous violation has been established, regardless of whether penalties were actually assessed.
A willful or intentional violation includes all employment practices engaged in deliberately or knowingly rather than accidentally or inadvertently. Evidence of an intentional failure to perform an act required to be done is all that is required and does not depend on the ability to show an evil purpose or intent to defraud. Ignorance of the law is not a defense and does not excuse an employer’s violation.
Waiting time penalties are applicable for an employer’s failure to timely pay all wages owed to an employee who is discharged or quits under Labor Code sections 201, 202 and 203.
A worker can file one or more of the following:
- A wage claim with the Labor Commissioner’s Office, claiming the statutory penalties that go to the employee;
- A Report of Labor Law Violation with the Labor Commissioner’s Office for widespread violations affecting a group of workers for the civil penalties that go to the State.
Yes. Workers who face discrimination or retaliation in any manner whatsoever—for example, if the employer fires a worker because they complain about not being paid timely or not being paid overtime, or because the worker filed a claim or told the employer that they intend to file a claim with the Labor Commissioner — can file a discrimination/retaliation complaint with the Labor Commissioner's Office.