San Diego Wage and Hour Violation Attorney
CALIFORNIA WAGE AND HOUR VIOLATIONS:
If your employer does not comply with the state or federal labor laws, you have the right to take legal action against them, to make them pay all unpaid wages, overtime compensation, penalties, attorneys’ fees, interest and costs.
The most common wage and hour violations by employers are:
Minimum Wage
Employers must at the very minimum, pay employees the minimum wage required by law. The increased minimum wage was approved by Governor Arnold Schwarzenegger on September 12 when he signed into law Assembly bill 1835 (Lieber), which increases the minimum wage in two phases. On Jan. 1, 2007 the minimum wage jumps from $6.75 to $7.50 per hour, and on Jan. 1, 2008 the minimum wage increases to $8.00 per hour.
Overtime Pay
“Non-exempt” employees are entitled to overtime pay as follows:
One and one-half (1.5) times the hourly rate (or regular rate of pay) for any and all hours worked in excess of eight (8) hours per day and/or forty hours per week, and for the first eight (8) hours on the seventh consecutive work day.
Two (2) times the hourly rate (or regular rate of pay) for any and all hours worked in excess of twelve (12) hours in any workday and double time after eight (8) hours on the seventh day of any work week.
Misclassifications:
“Exempt” v. “Non-exempt” Employees
There are two types of employees: “exempt” and “non-exempt”. “Exempt”
employees do not receive the benefit of overtime compensation. “Non-exempt” employees are entitled to overtime compensation. Employees can be misclassified as “exempt” when they are actually “non-exempt”. This misclassification can sometimes be intentional by the employer in an attempt to avoid paying an employee overtime compensation.
Job titles do not determine whether an employee is “exempt” or “non-exempt”. For example, having the word “manager” in your job titles does not determine if you are “exempt”. Likewise, not all salaried employees are “exempt”. It is possible to be paid a large annual salary and still be considered “non-exempt” even though your employer has misclassified you as “exempt”.
Whether an employee is truly “exempt” or “non-exempt” in many cases requires an intricate legal analysis by an experienced attorney. If you believe that you have been misclassified as an “exempt” employee and are owed overtime compensation, you should call Jason A. Rodenbo, Esq.
Independent Contractors
Employers oftentimes improperly classify their employees as independent contractors so that they, the employer, do not have to pay payroll taxes, the minimum wage or overtime, comply with other wage and hour law requirements such as providing meal periods and rest breaks, or reimburse their workers for business expenses incurred in performing their jobs. Additionally, employers do not have to cover independent contractors under workers’ compensation insurance, and are not liable for payments under unemployment insurance, disability insurance, or social security.
Whether an employee is an “independent contractor” in many cases requires an intricate legal analysis by an experienced attorney. Call Jason A. Rodenbo, Esq. if you believe that you have been misclassified as an “independent contractor” and are owed wages and/or overtime pay.
Employers must pay final wages on time or be subject to paying waiting time penalties
Employers are obligated to pay your final wages in a timely fashion. If the employee is terminated, the employer must pay all wages and unused vacation pay on the terminated employee’s last work day. If the employee voluntarily resigns or quits, the employer must pay all wages and unused vacation pay within 72 hours from the date that the employee’s last work day.
An employee may be entitled to waiting time penalties pursuant to Labor Code section 203 when the employer fails to timely pay all wages and/or overtime pay owed. Penalties include the employees’ daily pay for up to 30 days.
Employers cannot make unlawful deductions from employee’s pay
Generally, employers cannot deduct monies that they believe they are owed from an employee’s final paycheck. For example, it may be unlawful for an employer to deduct the cost of an employee’s uniform from the final paycheck. Labor Code section 2802 makes it unlawful for employers to require employees to expend monies or indemnify their employer for loses in direct consequence of the discharge of their duties.
Employers must permit Meal and Rest Periods
Employees working more than 5 hours per day must be provided 30-minute meal periods; except that if the total work period per day is no more than 6 hours, the meal period may be waived by mutual consent. Employees required to work more than 10 hours per day must be provided a second 30-minute meal period; except that if the total work period per day is no more than 12 hours. The second meal period may be waived but only if the first is not. In addition, limitations on meal periods must not be too restrictive, otherwise they will be considered time worked and possibly subject to overtime pay. Employees must also be given a paid 10-minute rest period to be taken in the middle of each 4-hour period. Employers are subject to substantial penalties under the Labor Code for failing to comply with meal and rest period requirements.
Employers cannot require a release in exchange for wages owed
In addition, it is unlawful for employers to condition final payment of wages that are owed on the signing of a release of the employee’s rights to sue the employer. However, if additional compensation is paid to the employee beyond the amount of compensation owed for hours which the employer was aware of the employee working (e.g. a severance package), in exchange for a release, that release agreement is binding and enforceable.
Employers must provide itemized wage statements
Employers must furnish itemize wages statements showing information such as the employer’s name and address, the employee’s name and social security number, gross/net wages paid, total hours worked, pay period dates, state and federal deductions. Employers are required to maintain payroll records and permit current or former employees to inspect these records within a reasonable time after the employee’s request.