WAGE AND HOUR AND MEAL PERIOD VIOLATIONS

Employees regularly assume that their employer is paying them properly…this is a mistake. In general, an employee is entitled to overtime compensation when he or she works more than 8 hours in a day or more than 40 hours in a week. An employer must also pay double time when the employee works more than 12 hours in a day. In order to avoid paying this additional compensation, an employer must typically establish that (1) the employee is not an employee at all, but rather an independent contractor, and thus not entitled to overtime; or (2) that the employee is exempt. The misclassification of employees as independent contractors, or otherwise exempt from the California and federal overtime and minimum wage requirements, is probably the most common mistake made by employers…and the most costly.

Other than a few positions, such as doctors and lawyers, which are considered professionally exempt, the law on whether an employee is exempt (not entitled to overtime) or non-exempt (entitled to overtime) is extremely complex. Many employees and employers mistakenly assume that if an employee is paid on a salary basis, or working as a supervisor/manager, then he or she is exempt, and thus, not entitled to overtime compensation. Not so. The right to overtime pay is not decided by an employee’s job title or method of compensation, but rather, in most situations, by the type of work performed. Employees should not presume that the type of work that they perform precludes them from receiving overtime without first consulting with an attorney.

Employers and employees also frequently assume that an employee paid on a commission basis is exempt, and thus not entitled to overtime or minimum wage compensation. Issues related to commissions can be complex, but there are nevertheless many circumstances where an employee paid on a commission basis would be entitled to overtime and/or minimum wage compensation. In fact, a failure to pay commission employees minimum wage and/or overtime compensation is one of the more common mistakes made by employers.

If you have a question as to your rights as a commission employee, or whether you should be considered non-exempt and thus entitled overtime compensation, then please call us immediately.

Another common violation committed by employers is the failure to provide an adequate meal break. In California, with very few exceptions, an employer may not employ an employee for a work period of more than 5 hours in a day without providing the employee with a meal period of not less than 30 minutes, except that if the total work period of the employee is no more than 6 hours. A second meal period of not less than 30 minutes is required if an employee works more than 10 hours in a day, except that if the total hours worked are no more than 12 hours.

Unless the employee is relieved of all duty during his or her 30 minute meal period, the meal period shall be considered an “on duty” meal period that is counted as hours worked. An “on duty” meal period is not in compliance with the law, even if the employee is paid for his or her time. If the employer fails to provide an employee with an adequate meal period, then the employee is entitled to one additional hour of pay at the employee’s regular rate of pay for each workday that the meal period is not provided.

Determining whether or not the employer is satisfying its obligation to “provide” a meal period can be very complex. If you are not taking a meal break where you are relieved of all duty, please call us immediately.

In general, employees paid on an hourly rate are entitled to overtime compensation. However, employers will often pressure, expect, or even require an employee to work “off-the-clock.” Working “off-the-clock” simply means that an employee is working, but the hours are not recorded and the employee is not paid. Working late, working at home, and/or working on the weekends, without overtime compensation, or any compensation at all, is all too common. If the employer knew, or should have known, that the employee was working off-the-clock, then the employee is entitled to compensation. Many employees decide not pursue a claim for overtime or minimum wage compensation because they assume they need documentary evidence to prove that they worked off-the-clock. This is not true. It is the employer, not the employee, who is responsible for keeping records of an employee’s hours worked. Many, if not most, overtime and minimum wage cases are won without the use of time records. In fact, the employee’s testimony alone is often sufficient.

If you are working without overtime compensation or working off-the-clock, then please call us immediately.

Another common violation committed by employers is the failure to provide an adequate meal break. In California, with very few exceptions, an employer may not employ an employee for a work period of more than 5 hours in a day without providing the employee with a meal period of not less than 30 minutes, except that if the total work period of the employee is no more than 6 hours. A second meal period of not less than 30 minutes is required if an employee works more than 10 hours in a day, except that if the total hours worked are no more than 12 hours.

Unless the employee is relieved of all duty during his or her 30 minute meal period, the meal period shall be considered an “on duty” meal period that is counted as hours worked. An “on duty” meal period is not in compliance with the law, even if the employee is paid for his or her time. If the employer fails to provide an employee with an adequate meal period, then the employee is entitled to one additional hour of pay at the employee’s regular rate of pay for each workday that the meal period is not provided.

Determining whether or not the employer is satisfying its obligation to “provide” a meal period can be very complex. If you are not taking a meal break where you are relieved of all duty, please call us immediately.