Subsequent violation for late paychecks in California

Question

Due to a paperwork error, a California employer stops issuing paychecks, and this isn't observed for five months (while the employee's work proceeds). At the time the employee informs the employer of the error, ten $1000 bimonthly paychecks have been missed, for a total of $10,000 in missing wages.

From here, I'm unclear on whether the last 9 missing paychecks count as "subsequent violations", entitled to a higher late payment penalty, or not. In other words, is the employee entitled to 10 * $100 = $1000 in penalties, or to $100 + 9 * $(200 + .25 * 1000) = $4150?

Answer 1

Item 10 from the link you referenced appears to me to answer your question:

10. When does the higher penalty for subsequent violations apply?

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.

As I read it, the only way a subsequent violation occurs is that the company misses a payment AGAIN after you notify them of the error.

From what you described above, I believe the answer is "no", you are not entitled to additional payments due to subsequent violations.

Answer 2

You might refer to the law as stated by the legislature. §210 says that

(a) In addition to, and entirely independent and apart from, any other penalty provided in this article, every person who fails to pay the wages of each employee as provided in Sections 201.3, 204, 204b, 204.1, 204.2, 204.11, 205, 205.5, and 1197.5, shall be subject to a penalty as follows:

(1) For any initial violation, one hundred dollars ($100) for each failure to pay each employee.

(2) For each subsequent violation, or any willful or intentional violation, two hundred dollars ($200) for each failure to pay each employee, plus 25 percent of the amount unlawfully withheld.

The first time they are late in paying you, they have violated the law and are subject to a $100 penalty. Every violation after that is a subsequent violation, which has a higher penalty. Thus $4150, for the proffered numbers (but only if this is within the statute of limitations, 1 year). "Violation" is not defined in terms of an employee complaining, it is defined in terms of an employer not paying, so there are clearly 10 violations.

The DoL explanation says that

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

does not mean that multiple violations are subsumed under one violation that accrues when notice is given; it means that they don't care when the penalty was actually assessed – this is for the case that the DoL handles the complaint. The employees can also file a claim.

Also note that the penalty goes to the state of California, and not the employee. The employee can get up to 25% of the penalty under the Private Attorney's General Act. This page gives some details on filing wage claims. Regarding options, they say that "The most obvious is to raise the issue with their employer and resolve it informally", bypassing official court action.