Legal Question in Employment Law in California

My mom passed away in April of this year right as she was retiring. She was the director of a privately owned preschool. Can I sue her employer for unpaid wages? Here's some background: The owners are very cruel and greedy people. My mom worked there for 18 years and took off maybe 10 days a year at most and worked 10-12 hour days if not more. The owners made the work environment very hostile, continually accusing my mom of things that they would later resolve and see she had nothing to do with it. They would text and call her sometimes as early at 5am on weekends and holidays. The made it impossible for her to ever take time off and would give her nonsense when she had a doctors appointment. They said that they don't keep track of my moms "vacation" because she's exempt and is paid for 40 hours a week if she works it or not. When she had to go on disability I inquired and her boss said that salary employees don't actually accrue vacation time they are "free to come and go as they please" which was NOT true! After he cancer diagnosis they continued to call about work related things. I'm not a "sue everyone" type of person but I find it VERY hard to believe that after 18 years, taking virtually no time off and working an excess of 50 hours a week that she wouldn't be owed something. They even wrote her a letter because I had called to ask about this. Their letter actually said something like "do you know how many hours of vacation you may have because we'd like to work something out." I apologize for the longwinded question I'm just very angry with them. My mom sacrificed time with her family, holidays, her health and more for owners who took vacation 2-3 weeks a month but were awful when employees wanted to go to a function at their child's school. They got paid for 40 hours per week and never worked it once. Is there anything I can do?

Asked on 9/13/13, 3:34 am

2 Answers from Attorneys

Timothy McCormick Libris Solutions - Dispute Resolution Services

There is no legal obligation of employers to treat employees fairly or well, just safely - as defined by Cal-OSHA, and to pay them in accordance with the wage and hour regulations applicable to their job classification and any agreed terms and conditions of employment - which may be verbal. There is no obligation to give any form of paid time off, whether sick leave, vacation, "PTO" or any other designation of paid time away from work (except in a few cities where local municipal codes require paid sick time for public health reasons). There is an obligation to provide what is promised or agreed, but there is no obligation to offer it in the first place. They are also free to change wages and any other terms and conditions of employment at any time, including adding or eliminating paid vacation policies, just not retroactively and not to pay below minimum wage. The director of a pre-school is almost certainly an exempt employee - meaning wage and hour rules do not apply as long as she made at least double minimum wage x 40hrs/wk. So you would have no claim based on the extensive hours she worked. As for vacation, you would have to prove that there was an agreement or policy about vacation that granted your mom vacation accrual. The fact that they offered to settle any vacation claim is not admissible evidence. So you need something more than that to prove there was actually an agreement, policy or terms of employment that she would get vacation. If you can prove that, with admissible evidence, then yes, the executor of her estate can proceed in probate court to recover the money as a debt owed to her estate. The estate would be entitled to all unpaid vacation, plus 30-days additional pay as a penalty.

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Answered on 9/13/13, 9:17 am

Terry A. Nelson Nelson & Lawless

Yes, theoretically, the representative of the Estate would have standing to bring suit for provable unpaid wages, plus any penalties. If she was a salaried exempt employee [likely], then she would not be owed any overtime as you seem to be thinking, and the Estate could only go after any paychecks she hadn't received at the time of her death. If that is the case, the Estate should make demand on the employer for that amount to be paid into the Estate.

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Answered on 9/13/13, 12:30 pm

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