Does waiting time penalty include overtime wages?

Maybe – waiting time penalty includes overtime wages. The penalty applies to the willful failure to pay “any wages,” which refers to the definition of “wages” in Labor Code Section 200.  Thus, all compensation must be considered in determining if all wages due were paid as prescribed by law.

Occasional or infrequent overtime is not considered in the calculation of the daily rate of pay for purposes of computing the penalty. In calculating the penalty, overtime wages are considered only if overtime is regularly scheduled each week.

The penalty is measured at the employee’s daily rate of pay and is calculated by multiplying the daily wage by the number of days that the employee was not paid, up to a maximum of 30 days. This does not mean that the wages continue for a 30-day period, but that the employee may be entitled to up to 30 actual days’ worth of wages.

The 30-day period is calendar days, and includes weekends and holidays and any other days that the employee would not normally work.

An employee’s filing a claim with the Division of Labor Standards Enforcement (DLSE) is not considered the filing of an action, and does not stop the penalty from accruing.

Payment of the wages or the commencement of an action stops the penalty from accruing. Filing a complaint in court commences an action.

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