Category Archives: FLSA – Fair Labor & Standards Act

See’s Candy & California Law – Rounding is OK…Sometimes

See's Candy Rounding Wage and Hour Lawyer

Wage Attorney on Rounding – California just came down with another big court decision. This one involves lots and lots of chocolate. In  See’s Candy Shops, Inc. v. Superior Court the California Court of Appeal addressed whether it is legal for an employer to round it’s employee’s time clock entries to the nearest tenth of an hour.

In See’s Candy, Plaintiff was employed in a non-exempt hourly positon by See’s Candies Shops. She filed a wage and hour class action lawsuit. The trial court granted her summary adjudication motion and dismissed four of See’s affirmative defenses. See’s challenged the dismissal of two of the defenses related to it’s policy of rounding employee punch in and out times to the nearest tenth of an hour.

How did this rounding policy work? For example, if an employee clocked in at 7:58 a.m., the system rounds the time to 8:00 a.m., and if the employee clocked in at 8:02 a.m., the system rounds down the entry to 8:00 a.m. The plaintiff argued that this rounding policy violated CA Labor Code sections 204 and 510 because the employees were shorted small amounts of wages.

See's Candy Wage Hour LawyerThe Court determined that See’s argument had merit because there was no CA statute or case law related to rounding, so the Court looked to the federal regulatory standard in the FLSA. Under that standard, employers are permitted to use a rounding policy as long as it does not consistently result in a failure to pay employees for time worked. An employer may use a nearest-tenth rounding policy if it is fair and neutral on its face and it is used in a manner than will not result, over time, in failure to compensate employees for the time they actually worked. See’s presented evidence that its rounding policy did not result in a loss of wages to employees over time.

By the way, this lawyer prefers…no loves the dark chocolate marzipan. It will blow your mind. Just saying….

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Filed under FLSA – Fair Labor & Standards Act, Wages and Hours

My Boss Doesn’t Let Me Take A Rest!

If your boss does not let you take a rest break, or forces you to work during your rest breaks, what can you do? What is owed to you? According to California Labor Code Section 226.7:

(a) No employer shall require any employee to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission.

(b) If an employer fails to provide an employee a meal period or rest period in accordance with an applicable order of the Industrial Welfare Commission, the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each work day that the meal or rest period is not provided.

Moreover, the applicable wage order to your industry likely includes language similar or identical to this (section 12):

Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof.

If you’ve been denied rest breaks, or forced to be ‘on-call’ during your rest breaks, you might have a legal claim. If you want to know more, check out my earlier post on a recent rest break case. The case, commonly known as “Brinker,” was big news because the California Supreme Court weighed in and attempted to resolve lingering questions for wage and hour lawyers all across the state. I’ve also written an entire post exclusively on rest breaks. Check out both to learn more information.

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Branigan Robertson is a California employment lawyer who exclusively represents employees in workplace disputes. He focuses his practice on sexual harassment, wage & hour, wrongful termination, and retaliation. Visit his website at BRobertsonLaw.com or call his office at 949.667.3025.

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Filed under FLSA – Fair Labor & Standards Act, Rest Breaks, Wages and Hours

Independent Contractor or Employee?

Are you an independent contractor or an employee? What is the difference?Many companies try to sidestep California’s law by hiring “independent contractors” instead of employees. If legitimate, independent contractors are not “employees” covered by the wage and hour laws, and therefore companies don’t have to pay them overtime. Legally, companies are not allowed to hire an “independent contractor” if the worker qualifies as an “employee” under California’s economic realities test.

This test looks to see whether the worker is dependent on the company to which they render their services to. In determining whether workers qualify as employees under the Fair Labor Standards Act, courts look at a number of factors, including:

  • the degree to which the employer has the right to control how the work is performed,
  • the degree to which the worker’s opportunity for profit or loss depends upon the worker’s managerial skill,
  • the worker’s personal investment in equipment, labor, or materials required for the job,
  • whether the service at issue requires a special skill,
  • the degree of permanence of the working relationship; and
  • whether the service rendered is an integral part of the employer’s business.

The importance that the court gives each factor depends on the totality of the circumstances; however, the right to control the means and manner of job performance is generally the most important consideration.

On the other hand, if the worker is classified appropriately as an independent contractor, he or she is not a “employee” under California law, and are therefore not entitled to overtime.

Sadly, abuse of this system is rampant. According to one study, tax audits done by the Economic Development Department from 2006 to 2008 show that 29% of audited employers misclassify workers as independent contractors when they should be employees. This comes from the National Employment Law Project (October 2011) Independent Contractor Misclassification Imposes Huge Costs on Workers and Federal and State Treasuries,  p. 4, 5, fn. 5.

If you have been misclassified as an independent contractor, and therefore denied overtime, give an employment attorney a call. You might be owed a lot of money.

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Branigan Robertson is a California employment lawyer who exclusively represents employees in workplace disputes. He focuses his practice on sexual harassment, wage & hour, wrongful termination, and retaliation. Visit his website at BRobertsonLaw.com or call his office at 949.667.3025.

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Filed under FLSA – Fair Labor & Standards Act, Independent Contractor, Overtime, Wages and Hours

Do Employees Get Overtime If They Are Paid A Salary?

Do employees get overtime if they are paid a salary?A common question employment lawyers get is: “I get paid a salary but I work 50, 60, 70 hours a week. Should I be paid overtime?”

As with most legal questions, the answer is far more complicated than the question. But this article attempts to outline the answer without too much legal gobbly-gook.

One of the biggest myths about overtime in California is that people who are paid a salary are never entitled to overtime.  The sad fact is that many people who are paid a salary by their employers are entitled to overtime and don’t receive it, and even more are paid hourly but don’t get any overtime because they work for dishonest companies with shady time-keeping procedures. Thus, if someone tells you that you are not entitled to overtime just because you are paid a salary, they are dead wrong.

In California, everyone is entitled to overtime pay unless they first meet one of the legal overtime exceptions. These exceptions are called “exemptions” under the law. Think of an exemption as a test: if your job passes the test your employer gets rewarded and doesn’t have to pay you overtime; however, if your job fails the exemption, then you are rewarded with overtime. I italicized “job” to emphasize that the test is dependent on your job functions, not on your personal capabilities.

Employers sometimes find it difficult pass an exemption for your job. Undeterred, many companies claim that your job meets the exemption when, in reality, it doesn’t. They do this because they don’t want to pay you the hour. It’s so much easier to pay you a salary – there are no time cards, variable monthly payments, and no overtime.

The next question becomes, what are these exemptions and does your job meet one of them? There are four major exemptions: “administrative,” “executive,” “professional,” and the “computer software professional.” If your job doesn’t meet the requirements for one of these exemptions then you are entitled to overtime pay.

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Filed under Exempt, FLSA – Fair Labor & Standards Act, Hourly or Salary?, Non-exempt, Overtime, Wages and Hours

Angel’s Union Authorizes Strike

Oh dear. Angels fans be wary! The workers who sell hot dogs and beer at Angel Stadium may strike. If you’re like me, you can’t go to an Angel game an not get a beer and a hot dog. A typical food-service cashier at Angel Stadium makes $12.88 an hour. Apparently, similar jobs pay more in other stadiums. More than 500 workers have authorized union leaders to call for a strike if contract negotiations remain stagnant. Read the full article here.

Food workers say that they are frustrated by a wage freeze and health-care takeaways suggested by concessionaire Aramark, which handles food and beverage sales at the stadium.

Angel’s owner Arte Moreno needs to fix this fast.

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Branigan Robertson is a California employment lawyer who exclusively represents employees in workplace disputes. He focuses his practice on sexual harassment, wage & hour, wrongful termination, and retaliation. Visit his website at BRobertsonLaw.com or call his office at 949.667.3025.

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Filed under FLSA – Fair Labor & Standards Act, Wages and Hours