Category Archives: Overtime

Minimum Wage and Overtime: Holding Employers Accountable for Depriving Employees of Basic Pay

Minimum Wage KittenAs surprising as it may seem, some employers still fail to pay their employees proper minimum wage and overtime under California law. Recently, the California Department of Industrial Relations issued wage theft citations of roughly $16 million against several California restaurants. The California restaurants were cited for wages, premiums, and penalties owed to hundreds of employees for various wage theft violations. Investigations exposed a heinous amount of wage theft as it was discovered that employees, mostly waiters and waitresses, were paid an average of $1.15 per hour. Some waiters and waitresses were even either not compensated at all or were just paid a fixed rate of $200 per month. Also, kitchen employees were also never compensated for overtime. Considering some employers have trouble following wage and hour laws, let’s go over some of the basics.

As of July 14, 2014, California’s minimum wage is $9.00 per hour. Although the Federal minimum wage is $7.25 per hour, California law supersedes for employees working in California. Thus, the California restaurants were breaking both California and Federal law by paying their employees only $1.15 per hour. It is also important to note two important things. Employees cannot waive minimum wage so even if some of the waiters and waitress here agreed to be paid under minimum wage, that agreement would not hold water in court. Second, since we are talking about employees who make tips, California law prohibits an employer from crediting tips toward minimum wage and also prohibits an employer from taking any amount of tip given to an employee by a patron.

Under California law, an employer must pay 1 ½ times the employees regular wage after 8 hours worked in a day and after 40 hours worked in a week for all non-exempt employees. Sometimes employers tell an employee that it is necessary for him or her to work long hours due to the nature of the assignment and therefore overtime is not required. Or employers might tell employees that the company he or she works for does not fall under the kind of company that must pay overtime under California law. These are all fabrications and excuses not to pay an employee. All that matters is if the employee worked overtime hours and whether the employee worked with the knowledge of his employer.

Although it sad and unfortunate that employers continue to violate basic wage and hour laws, citations issued by the California Department of Industrial Relations, such as the citation discussed above, shows that employee rights are still being fervently upheld across the state. If you believe your employer is paying you under minimum wage or you are being deprived of overtime, contact an attorney immediately.

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Filed under Class Actions, Minimum Wage, Overtime, Wages and Hours

Lady Gaga Gets Sued for Overtime – This Deposition Transcript is Simply Amazing

Lady Gaga Sued for Overtime - Wage & Hour AttorneyEven the rich and famous get sued for not paying overtime. Stefani Germanotta, aka “Lady Gaga,” was sued in 2011 by Jennifer O’Neill, her personal assistant. O’Neill claims she’s owed overtime for serving at Gaga’s “beck and call” around the clock between early 2009 and March 2011. She claims she worked $393,000of worth of unpaid overtime.

Gaga was deposed last year. As I’m an employment lawyer, I’m just going to say this…I certainly hope that I can sue someone as awesome as Lady Gaga. I want to have a deposition like this. Now, I could spend a bunch of time detailing the questions, but I think it would be far more entertaining to just quote the ridiculousness that came out of Gaga’s mouth.

“Are you going to stare at me like a witch this whole time — honestly?” Gaga asked one of the lawyers. “Because this is going to be a long f–k ng day that you brought me here.” Later she states: “No, no, no. Listen, listen, sir, if you’re going to ask me questions for the next five hours, I am going to tell you exactly what f–king happened, so that the judge can read on this transcript exactly what’s going on.”

Gaga said none of her employees get paid overtime, adding that O’Neill “knew exactly what she was getting into, and she knew there was no overtime….” “This whole case is bulls–t, and you know it,” Gaga added.

According to the New York Post, Gaga conceded her decision not to pay overtime wasn’t based on labor laws, but is “actually based on a bubbly, good heart.” Gaga said she paid O’Neill’s $75,000 a year. She gave the job to O’Neill as “a favor, and Jennifer was majorly unqualified for it.”

Gaga said O’Neill failed at even the most basic of tasks, noting that “one of the biggest problems I had with Jen is that I felt like she didn’t lay out all my stuff for me” while traveling, because “there is 20 bags and there is only one me, and I can’t sift through everything.

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Filed under Hourly or Salary?, Overtime, Wages and Hours

Want to Be a “Private Attorney General” and Fight Labor Injustice?

PAGA, wages, paystub, hours, time card, punch card, employment law, californiaIn 2004, our great State enacted the “Private Attorneys General Act” (commonly known as “PAGA” – Labor Code § 2699). This statute gives an incredible amount of power to everyday employees who want to fight for workplace rights.

Under the PAGA, an employee may bring a lawsuit for Labor Code violations committed against the employee by his or her employer on behalf of other current or former employees against whom one or more of the alleged violations was committed. What is interesting here is that PAGA is not referring to class actions, it creates a private civil action on behalf of other employees. That means the PAGA contains no specific class certification requirements.

Employers are liable for a penalty of $100 for each aggrieved employee per pay period for the first violation and $200 for each aggrieved employee per pay period for each subsequent violation. The aggrieved employee does not, however, recover the full penalty amount. Seventy-five percent of the penalty goes to the Labor and Workforce Development Agency for enforcement of labor laws and education, and only 25 percent is recovered by the aggrieved employees. In addition to the civil penalty, a prevailing employee (but not a prevailing employer) may be awarded “reasonable attorney’s fees and costs.”

What type of penalties are we talking about?

  • Failure to pay wages immediately upon discharge.
  • Failure to pay with a payroll check with sufficient funds.
  • Illegal deductions or withholdings from wages.
  • Failure to provide statutorily compliant paystubs.
  • Failure to provide proper meal and/or rest breaks.
  • Failure to pay all tips and gratuities left for workers.
  • Failure to pay overtime for all hours worked in excess of 8 hours in a day or 40 in a week.
  • Failure to pay minimum wage.
  • Failure to reimburse for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties.

If you are currently suffering from one of the above Labor Code violations, you can become a private attorney general, and sue on behalf of your fellow employees to right the wrong. If you have any questions about PAGA or the labor code violations listed here, feel free to give me a call.

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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 Accurate Paystubs, Meal Breaks, Overtime, PAGA, 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

Brinker Part II – Lunch & Rest Breaks in California

Wages, hours, Brinker, time card, punch card, employment law, californiaI mentioned in an earlier post that I would post more information on the California Supreme Court decision Brinker Restaurant Corp. v. Superior Court. The Brinker decision was huge in the employment law world. It clarified some of the most tricky wage and hour issues.

Here are a few of the important rulings:

Lunch breaks: An employer is supposed to give a 30 minute uninterrupted meal break to employees who work more than five hours. An employers obligation is to relieve its employee of all duty, with the employee thereafter at liberty to use the meal period for whatever purpose he or she desires. The employer does not need to ensure that no work is done. An employer cannot discourage or impede meal periods. If the employer has the employee do work during his or her lunch break, the employee must be paid for it. If the employer relinquishes control and the employee decides to keep working with the employers knowledge, then the employer must still pay the employees hourly rate, but not an additional premium. For those who like bullets:

  • Employees who don’t work more than 5 hours don’t get a meal period.
  • Employees who work over 5 but not more than 6 hours get a meal period, unless they’ve waived it in writing. If they don’t waive it, the meal period must begin by the end of the 5th hour.
  • Employees who work more than 6 but not more than 10 hours get a meal period regardless of whether there’s a waiver. The meal period must begin by the end of the 5th hour.
  • Employees who work more than 10 hours get a second meal period. If they don’t work more than 12 hours they can waive the second meal period. If they don’t waive it, the meal period must begin by the end of the 10th hour.

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Filed under Meal Breaks, Overtime, Rest Breaks, Wages and Hours

California Wage Orders

What are wage orders and why do they matter to an employer?  Why do they matter to an employee?

For an employer, a wage order governs the wages, hours and working conditions in California.  For example, Wage Order 02 guides an employer in the personal services industry on what to pay an employee, what employment records must be kept, when meal and rest periods are mandatory, and other details.  Each wage order is meant to be self-explanatory but in reality is difficult and boring to read.  Wage orders must be posted in the workplace at a location where employees can read them during the workday.

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Filed under Exempt, Hourly or Salary?, Non-exempt, Overtime, Wages and Hours