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Last week, a California court awarded a former employee $2,250 in waiting time penalties after the employee quit her position and the employer sent her a final check in a timely fashion, but with a single typo. In Nishiki v. Danko Meridith, APC, Taryn Nishiki worked for Defendant Danko Meridith as an office manager and paralegal. Nishiki resigned by sending an email to Defendant on a Friday night after hours. At the time Nishiki resigned, she was owed $2,880.31 for unused vacation (“PTO”) time.

Defendant mailed her a handwritten check on November 18, 2014. However, the check had an inconsistency: the amount written numerically in the dollar amount box was “$2,880.31,” the correct amount; however, the amount as spelled out was “Two thousand eight hundred and 31/100,” ($2,800.31) or $80 less than the correct amount. The attachment to the check showed the gross amount of vacation pay due to Nishiki was $4,500, and a net amount due was $2,880.31. According to the court, here was no basis to conclude the omission of the word “eighty” in the spelled-out amount was anything other than an inadvertent clerical error.

On November 26, 2018, Nishiki notified the company that she had been unable to deposit the check because of the inconsistency between the numerical and written amounts. After some back and forth, Defendant mailed Nishiki a corrected check for $2,880.31.

As most employers are aware, all wages are immediately due to an employee who is terminated. When an employee resigns without notice, California law requires the employer to pay all wages within 72 hours. If the employer willfully fails to adhere to the above standards, an employee’s typical total daily earnings continue to run as a penalty from the due date until the wages are paid, for up to 30 days. The term “willfully” does not mean the employer’s refusal to pay is based on a deliberate or evil purpose to defraud employees of wages; rather, “willfully” merely means that the employer intentionally failed or refused to perform an act which was required to be done. Further, under California law, when there are contradictory terms on an “instrument,” (e.g. legal contract, check, deed, etc.) written words prevail over numbers.

Here, while the Defendant did not intend to willfully withhold $80 when it first mailed the check to Nishiki on November 18, 2014, the Court did rule that Defendant violated its statutory obligations to pay wages promptly when it was notified by Nishiki on November 26, 2014 of the clerical error. At that point, the Company was officially put on notice that wages were due but it delayed 9 days in providing those wages. As handwritten words prevail over numbers, Nishiki was due waiting time penalties for the nine days in between her notification and when the corrected check was mailed out for a total of $2,250 ($250 daily wages times 9 days).

COUNSEL TO MANAGEMENT:

As we recently wrote here, waiting time penalties can be a huge area of potential liability for employers. While most employers are aware of the laws concerning waiting time penalties, this case demonstrates perfectly how a simple mistake and unfamiliarity with the very lax “willful” standard catches otherwise “well-to-do” employers off guard. Please contact The Saqui Law Group with any and all wage and hour questions.

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