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California Overtime Violations
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Does your employer owe you for unpaid overtime? Whether you’re eligible for overtime pay depends on whether you’re considered exempt or non-exempt. However, your employer might classify you as “exempt,” but according to overtime pay laws, you still may be eligible based on your actual job responsibilities. California overtime law violations include unpaid overtime for working extra hours or for work done “off the clock,” and not being given or compensated for meal breaks.
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What counts as overtime? The state of California has more stringent overtime pay laws than most other states. According to the Department of Industrial Relations, a California employer must pay overtime, whether for authorized or unauthorized overtime hours, at the following rates:
California Overtime Laws
• Overtime: one and one half (1.5) times an employee’s regular rate of pay for hours worked over eight (8) in a workday or over forty (40) hours in a workweek.
• Double-time: two (2) times an employee’s regular rate of pay for hours worked over twelve (12) hours in a workday, or for hours worked over eight (8) hours on the seventh day of the workweek.
If an employee works seven consecutive days, he or she must be paid 1.5 times the usual rate for the first eight hours worked on the seventh consecutive workday, and double time for any hours worked over eight hours on the seventh workday.
In the state of California, minimum wage as of July 1, 2014 is $9 per hour (an increase of $1), and a further increase to $10 per hour is scheduled for July 1, 2016. Some employers may find this increase in hourly pay rate difficult but it is the law for everyone, including illegal immigrants (see Outdoor Workers below).
California labor law requires that the rate of pay on which overtime pay is calculated include hourly wages, salaries and wage augments, such as shift differentials, non-discretionary bonuses, commissions or piece-rate pay if received by the employee. To calculate overtime on hourly wage only is an overtime bonus violation.
Overtime & Bonuses
Missed meal breaks are a common complaint in overtime lawsuits:
Meal Breaks & Rest Breaks
• Meal Breaks: According to California labor law, an employee who works for more than five hours per day must receive a meal break of not less than 30 minutes. If the workday is no more than six hours, the meal break may be waived by mutual consent of both the employer and employee.
If an employee works more than 10 hours a day, a second meal period of not less than 30 minutes is required. If the total of hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and employee only if the first meal period was not waived.
• Rest Breaks: California labor law requires that non-exempt workers receive a 10-minute paid rest period for every four hours worked. It is recommended that the rest period be in the middle of the work period. If an employer does not provide a rest break, California labor law states that the employer shall pay the employee one hour of pay at the employee’s regular rate of pay for each workday that the rest period is not provided.
California Labor Code § 515 requires that most exempt workers earn a salary equal to at least two times the minimum wage at full-time employment. As of July 2014, these minimum salary requirements will increase to $37,440, and $41,600, effective January 2016. With these new minimum wage increases, employers are advised to reexamine their classification of exempt workers.
Exempt Employees & Misclassification
With new state regulations each year and with a new California minimum wage pay law established in 2014, employers often misclassify employees as exempt, intentionally or accidentally, to avoid paying costly overtime wages.
California employees paid salary or hourly may be eligible for overtime pay, whether they are paid weekly, bi-weekly or monthly. Being paid a salary does not automatically make an employee exempt from California overtime pay.
One test to determine eligibility for overtime pay is the “duties test”—assessing the actual work being done rather than only job titles or written job descriptions. An employee must be doing work that is mainly administrative, professional or executive in nature to be exempt from overtime.
• To be Exempt as an Administrative Employee: an employee must perform non-manual work as his or her primary duty, directly related to management policies, or general business operations, or perform work in educational administration.
• To be Exempt as a Professional Employee: an employee’s primary duties must consistently involve discretion and judgment, and work which is predominantly intellectual and varied.
• To Be Exempt as an Executive Employee: an employee must regularly direct the work of two or more other full-time employees, and have management as his/her “primary duty.” An exempt employee must also make over a certain amount of money a year, and must be paid salary. Exempt employees are not eligible for overtime pay, meal and rest period requirements, uniform requirements, and other protections of the Industrial Welfare Commission Orders.
Some employees are either accidentally or purposely misclassified as exempt from overtime pay. Either way, if they have been misclassified as exempt from overtime pay, they still deserve to be paid overtime and they deserve compensation for unpaid overtime.
As of January 2014, The California Bill of Rights (AB 241) extended overtime protections to domestic service employees (also known as personal attendants) who care for and support individuals and families in California.
Domestic workers are due time-and-a-half (overtime pay) for any work performed beyond nine hours in a day or beyond 45 hours in a week. All domestic workers are eligible for this overtime pay rate with the exception of babysitters under the age of 18 or individuals who work irregularly or intermittently as babysitters.
Prior to January 2014, domestic service employees were not covered by California’s overtime provisions.
Outdoor Workers, Including Illegal Immigrants
Individuals employed in agriculture and outdoor work such as landscaping and farming are now legally entitled to sufficient rest breaks (minimum five minutes in the shade) when temperatures exceed 85 degrees Fahrenheit. This new law applies to everyone, including illegal immigrants, who now have a number of rights and protections under Bill 263.
Bill No. 263 prohibits an employer from engaging in “unfair immigration-related practices” when an employee asserts protected rights under the Labor Code. For instance, if you are an illegal immigrant and complain to your employer that you are not receiving minimum wage ($9 per hour as of July 2014), your employer may not threaten to report you to immigration authorities. An employer who violates the new California labor laws and California overtime laws is liable for a civil penalty not exceeding ten thousand dollars ($10,000) per employee for each violation of this section.
The California Labor Code § 226.7 prohibits employers from requiring employees to work during meal or rest periods. If an employee does not receive the proper meal and rest periods, including the new “recovery periods” or “cool down period afforded an employee to prevent heat illness,” the employer must pay to the employee one hour of pay as a penalty. Employers are advised to review California OSHA recommendations to preventing heat illness.
Managers are sometimes improperly exempted by employers. To be legally exempted from daily, weekly, and seventh day overtime, as well as required breaks, a California manager or assistant manager must:
• earn at least two times the minimum wage (approximately $28,000 per year)
• perform duties not also performed by non-exempt workers for at least half of their daily work (cannot do the same work as non-managers 50% or more of the time)
As of July 1, 2014, to qualify for a “white collar” exemption, an employee must earn an annual salary of at least $37,440, and beginning January 1, 2016, an annual salary of at least $41,600.
California Assistant Store Managers and Restaurant Assistant Managers working on salary over 40 hours a week, who also perform non-exempt duties, are entitled to overtime pay. Federal law mandates overtime pay for retail and restaurant workers for performing non-exempt work.
Retail and Restaurant Assistant Managers
If you are an Assistant Manager, Assistant Store Manager, Co-Manager, Assistant Retail Manager, or are in a similar assistant manager job position and do not get paid for working overtime, you may be owed overtime back pay for being wrongfully misclassified as an exempt employee.
Many major US retailers have misclassified assistant managers as exempt. If you are a current or former assistant manager at a retail outlet, including Williams Sonoma, Pottery Barn, Restoration Hardware, Rite-Aid, or dozens of other major retailers, you may be owed back pay for being wrongfully misclassified as an exempt employee.
If you are a property manager and do not supervise anyone, and do not have independent discretion, are paid hourly, or are asked to work “off the clock,” and do not fall into a particular exemption category, you may be entitled to California overtime pay.
California Property Managers
Pay and job duties determine if a California computer professional is entitled to overtime: the more routine and unvaried the work, the greater the likelihood a high-tech employee is owed overtime.
California IT & Computer Engineers
Exempt employees must fit into one of the three different professional exemptions under California law and the federal statute: the learned professional, the creative professional or the computer professional.
According to the California Department of Industrial Relations, “computer professional” exempt employees must mainly perform intellectual or creative work that requires independent judgment in the design, development, documentation, analysis, creation, testing, or modification of systems, programs, software or hardware. Beginning January 1, 2014, employers will have to pay their computer professionals at least $84,130.53 a year ($7,010.88 monthly) to qualify for the exemption, up from the 2013 rate of $83,132.93.
This is an increase from $38.89 or more an hour ($81,026.25 or more annually, or $6752.19 or more monthly) in 2012.
An exempt employee must spend at least 50 percent of his or her time performing what are considered “exempt” duties to qualify as exempt. The legislation states: “the individual must be highly skilled, with proficiency in the theoretical and practical application of highly specialized systems analysis, programming and software engineering.”
Therefore, high-tech employees who are mainly troubleshooting accounts, or installing, testing, or configuring technology products based on given requirements may be eligible for unpaid IT overtime lawsuits.
California Quality Assurance Engineer Overtime
In California, Quality Assurance (QA) Engineers are often misclassified as exempt from overtime. If the duties they perform regularly are routine, repetitive, automated, or are not intellectually varied in nature, they may be due to be paid overtime. In the last decade, a California law affecting most computer programmers eliminated overtime and set a minimum wage for these workers, but there are still exceptions.
California Test Engineers Unpaid Overtime
Test Engineers (TE) who perform the repetitive and automated tasks common to this job are likely eligible for overtime. Many Test Engineer overtime lawsuits have succeeded, and TE paid less than $38.89 an hour (in 2012) are more likely to require overtime pay.
Registered nurses who do intellectual work that requires advanced knowledge and are paid a salary of $455 or more a week are generally exempt as learned professionals. However, nurses overtime lawsuits are on the rise, and many of these suits, involving improper exemptions, denied overtime, and missed breaks, have involved California nurses. Settlements include $7.25m from Kaiser Permanente (2007), $85 million from Tenet Healthcare Corp. (2009), and $1.9 million from Valley Presbyterian Hospital (2009).
California Nurses Overtime
Even nurse scabs covering for California nurses on strike over overtime pay are experiencing overtime violations.
Employers typically hire minimal staff at satellite bank locations, such as bank kiosks in malls, or as add-ons to major grocery stores. In adhering to the scheduled bank hours of operation, bank center staff is often forced into an unpaid overtime situation, without meal breaks or any breaks at all over an eight-hour shift.
California Bank Center Staff (local kiosks)
A number of call center unpaid overtime class action lawsuits are currently pending in the United States District Court, and several wage and hour class action lawsuits have been filed against California call centers, claiming that call center employees are not paid for the time spent logging into their computer systems and all required programs before and after their shift.
California Call Center Workers
The California class-action lawsuits allege that, if you are required and/or permitted to come into work early so you can be completely logged into your computer and the necessary programs before the official start of your shift, then you should be paid overtime pay for that pre-shift work time. As well, you should also be paid overtime pay if you have to stay after your scheduled shift to log out of your system. These class action lawsuits typically cover call center employees in the last four years and currently.
Donning and doffing refers to the time spent putting on and taking off uniforms or required work safety gear to properly perform job duties. Often, work gear can take 10 minutes or more to put on and take off for each shift, plus time spent dressing and undressing for breaks, but employers frequently do not pay for that time. In some cases, employees should be paid for their time spent putting on and taking off required work clothing and safety gear and, if the employee is full time, the unpaid time could actually mean overtime is owed.
Donning and Doffing Violations
In addition to uniforms and safety gear, some employees at restaurants are required to come in 15 minutes early to learn about the day's specials, set tables and taste food so they can recommend it to customers. Although this time is required for work—and although it benefits the employer—in some companies such time is unpaid, meaning workers are giving up an extra 15 minutes per shift for the benefit of their employer. For employees who work full-time, that extra 15 minutes per shift is unpaid overtime, and over the course of a year, that unpaid overtime could add up to hundreds of dollars of unpaid work.
A lawsuit has reportedly been filed against Bloomin' Brands, Inc, owner of Outback Steakhouse, alleging violations of the Fair Labor Standards Act. the lawsuit alleges the company required employees to perform unpaid work prior to shifts, refused breaks and failed to pay for mandatory meetings and training sessions.
Bloomin' Brands has denied the allegations.
Leading California law firms are investigating overtime law violations and providing free case evaluations for California employees who are due overtime wages. California and US employment laws protect an employee's civil rights with specific guidelines for overtime pay.
California Overtime Lawyer
If you work in California and you feel that you are owed overtime pay, you may qualify for damages or remedies that may be awarded in a possible unpaid overtime class action or lawsuit. Click on the link below to submit your Unpaid Overtime complaint.
Last updated on Aug-26-14
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