Wages and Overtime

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When California employers disregard the federal or state standards for wages and hours of work, it generally happens in three main situations:

  • Incorrect labeling of a position. When this happens, a person who is labeled exempt is actually doing the job of workers and is entitled to overtime pay.
  • Failure to pay lunch and breaks. In this situation, an employer does not allow an employee these breaks.
  • Failure to pay all wages due. This situation usually arises when an employee is fired and there are outstanding commissions, vacation pay or unpaid overtime due.

In each of these situations, the result for you is the same: not being paid fairly for your hours of work.

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Many employers try to save money, especially in this economy, by violating California’s strong wage and hour laws.

In fact, errors are so prevalent that often when a client calls us about one area of law, we find that they have a better argument for wage and hour violations. The specific law in this area is complex, but most people do not know that their employer is violating the law in this area or how to address their concerns. We aim to change that.

Just as a severance package is meant to bridge the loss of an employee’s income, identifying a wage and hour violation may provide a bridge to what often seems an uncertain future. We have seen this in cases we have handled recently.

Are You Owed for All of the Overtime Hours You Worked That Were Not Paid Because You Were Told You Were “Exempt”?

In California, almost all workers should receive overtime pay. Employers choose to pay workers on a salary basis so they can work them over eight hours a day and/or forty hours a week and not pay the premium pay. California’s laws are wise to this scheme, and do not allow it.

The law presumes that the vast majority of employees in California must be paid overtime wages if they work overtime.

Labels aren’t important. Even if your employer calls you a “manager,” or “supervisor,” it does not matter. The law looks at the job tasks that you perform from day to day at your job. California’s law presumes that all workers deserve overtime, and it is up to your employer to prove that you really are “exempt” from overtime pay. In California, it is only a select few employees who are not entitled to overtime pay.

A Few Examples of Actual Cases Where We Have Successfully Represented Employees Who Were Told That They Were Exempt from Overtime:

Machinist was called “Supervisor” and paid a salary. He supervised up to five employees, but he could not hire or fire employees without approval from human resources. His employer required that he work 50 hours a week. This machinist was still required to work the machines the majority of his workday to help keep labor costs down. He had worked for two years as a supervisor and when he was terminated he was not paid the overtime owed because the company claimed he was exempt from overtime.
Manager of a large retail chain store was required to do anything necessary in store to keep it at level required by corporate office. This meant that Manager had to run cash register, stock shelves, and clean if employees were unavailable or the place was short staffed. Manager also had to prepare schedules, direct employees, order merchandise, and fill out corporate paperwork. Because the Manager had to keep labor costs low, she could not hire enough employees to keep her working on her management duties over fifty percent of the time.
It does not matter if your employer is a large, well-respected corporation or a smaller employer. No matter how sophisticated, employers routinely violate the requirement that it must pay overtime pay to its workers.

Have Questions? Contact HenkLeonard

You may be owed wages for missed lunches and rest breaks.

You may also be owed if these breaks are cut short by work duties or taken late in the day.

You would be surprised at how many employees are forced to miss meal periods. Most of these employers are aware that these employees are not getting lunches, but really do not care because they want the work to get done.

But, hourly employees need to be provided with a thirty-minute DUTY FREE meal period after the fifth hour of work. Are you getting those full, uninterrupted thirty-minute meal breaks?.

Hourly employees are also entitled to a rest period of ten minutes every four hours worked. Did your employer refuse to allow them because work was to busy? Did you receive your whole break without an interruption from your employer? If your employer requires you to answer the telephone or wait on a customer (even for only a couple of minutes) you did not get your DUTY FREE break.

If these breaks are missed, you may be entitled to one hour of pay for EACH one missed. If you were terminated without being given these wages, you may also be entitled to a monetary penalty.

Many employees in California are owed wages and not paid them when fired.
Did you know that vacation and/or PTO hours in California are wages? If all of the hours owed to you are not paid when your employment is ended, you can get these wages as well as a penalty. We have represented many employees who were told that all of their vacation pay was used (when it was not) or was not accurately calculated at the end of their employment. All wages (even vacation pay) must be paid immediately if you are terminated. You can get one day’s pay for each day they are late, up to thirty days.
Are you a commissioned salesperson who had pending commissions owed when you were terminated? Were they paid once they came due? Did your employer tell you that these wages were “forfeited” if you were terminated? Be aware that generally speaking, commission forfeitures for termination of employment are disfavored under California law as a matter of public policy.

California’s Division of Labor Standards Enforcement takes the position that commissions must be paid on the next regular payday after they have been earned and are “reasonably calculable.”

We successfully represented an employee who worked for a new home builder. She was supposed to be given commissions based on various upgrades chosen for the home. She was terminated and told that her employment contract called for a 50% forfeiture of sales she had made at the time she was let go because the new employee would be required to deal with any customer services issues that arose on those sales.

Were you required to travel as part of your job, but your employer refuses to pay you “travel time”? Most employees are not owed for the time they drive to and/or from work. But some workers (for example, HVAC repairmen) may be entitled to “drive time”. Many employers try to get out of paying for this time by either not paying it at all or not including the time in determining overtime pay owed.
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If you believe that your employer (or former employer) has not paid you all of the money you are owed, contact Henk Leonard for us to do a free evaluation of your situation to see if we can assist you in a claim against your employer.
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