California Overtime Violations
Does your employer owe you for unpaid overtime? California law provides protections for employees, with stiff penalties for wage and hour violations. If you believe that your employer has violated the California labor code, you have every right to file an overtime lawsuit.
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As a general rule, employers must pay an overtime premium of one and a half times the employee’s regular rate for all hours worked in excess of 40 within a workweek and to also pay at least the minimum wage for all hours worked. However, the law also establishes certain exceptions to these requirements. The workers not protected by overtime laws are referred to as ”exempt.”
Whether you're eligible for overtime pay depends on whether you're considered exempt or non-exempt. Your employer might classify you as "exempt," but according to overtime pay laws, you still may be eligible based on your actual job responsibilities. Too often, employers misclassify their employees – perhaps unintentionally—to avoid paying overtime and benefits.
California overtime law violations include unpaid overtime for working extra hours or for work done "off the clock," and not being compensated for meal breaks and rest breaks.
CALIFORNIA OVERTIME LAWSThe state of California has more stringent overtime pay laws than most other states. According to the California Labor Commissioner’s Office, a California employer must pay overtime, whether for authorized or unauthorized overtime hours, at the following rates:
- One and one-half times the employee's regular rate of pay for all hours worked in excess of eight hours up to and including 12 hours in any workday, and for the first eight hours worked on the seventh consecutive day of work in a workweek; and
- Double the employee's regular rate of pay for all hours worked in excess of 12 hours in any workday and for all hours worked in excess of eight on the seventh consecutive day of work in a workweek.
Minimum WageAs of 2021, California’s minimum wage is $14.00 per hour (or $13.00 per hour for employers with 25 or fewer employees). However, certain cities have chosen to increase that amount—it cannot be lowered. For example, in the City of Los Angeles the minimum wage is $15.00 per hour (or $14.25 per hour for employers with 25 or fewer employees)
OVERTIME & BONUSESCalifornia 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.
MEAL BREAKS & REST BREAKSMissed meal breaks are a common complaint in overtime lawsuits. 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 must also be provided. 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.
Meal and Rest Break PenaltiesEmployers—even if they accidentally misclassify employees— owe a penalty of one hour of pay at the employee’s regular rate for every workday in which a meal break is not provided – same rule applies for rest breaks. For instance, if you work an eight-hour shift without meal and rest breaks you are entitled to collect one hour for the missed meal period and one hour for the missed rest breaks.
Donning and DoffingMany industries and companies require specialized gear to prevent the risk of injury or illness on the job, and to prevent the spread of virus. Putting on and taking off protective gear, including personal protective equipment such as PPE during the coronavirus pandemic, is called donning and doffing. Some employees need to don and doff during breaks as well as starting and ending their shifts.
Work gear can often 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 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.
EXEMPT EMPLOYEES & MISCLASSIFICATIONSalaried employees may be eligible for overtime pay. Being paid a salary rather than hourly does not automatically make an employee exempt from California overtime pay.
In January 2020 Assembly Bill (AB) 5 became effective. AB5 requires the application of the “ABC test” to determine if workers in California are employees or independent contractors. Its purpose is to assess the actual work being done rather determine work by job titles or written job descriptions. Under the ABC test, a worker is considered an employee and not an independent contractor, unless the hiring entity satisfies all three of the following conditions:
- The worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;
- The worker performs work that is outside the usual course of the hiring entity’s business; and
- The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.
To be Exempt as a Professional Employee, an employee' 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.
Domestic WorkersThe California Domestic Worker Bill of Rights extends overtime protections to domestic workers and personal attendants who care for and support individuals and families in California.
California law has different overtimes rules for personal attendants, as compared to other types of domestic workers. To determine what overtime rules may apply to a particular domestic employee, there are typically two questions: Does the worker qualify as a “personal attendant” as opposed to other types of domestic workers? Does the employee live in the home? The answer to these two questions will determine when overtime is owed, if at all.
- Personal attendants are usually employed by a private household or any third-party employer recognized in the health care industry to work in a private household. Duties of a personal attendant include supervising, feeding, and dressing a child or person who needs assistance because of advanced age, physical disability, or mental deficiency. Typically they are nannies, nurses, and caretakers.
- Other domestic workers provide services related to the care of people in the home, or maintain private households or their premises. Typically they are butlers, chauffeurs, cooks, gardeners, tutors, housekeepers, guards, and assistants to healthy adults.
- Domestic workers who do not live with the family or in the home are entitled to:
- overtime (1.5 times the regular rate of pay) for hours worked over eight in a day or 40 regular hours in a workweek;
- overtime for the first eight hours worked on the seventh consecutive day of the workweek (depending on the hours spread over the workweek);
- double time (2 times the regular rate of pay) for hours worked over 12 in a day; and
- double time for hours worked over eight on the seventh consecutive day of the workweek.
- Babysitters under the age of 18 or individuals who work irregularly or intermittently as babysitters may not be entitled to overtime.
- Live-in domestic workers are entitled to:
- overtime for hours worked over nine in a day;
- overtime for the first nine hours worked on the sixth and seventh consecutive day of the workweek; and
- double time for hours worked over nine hours on the sixth and seventh consecutive day of workweek.
Agricultural and Outdoor Workers, Including Illegal ImmigrantsAs of January 1, 2021, overtime rules for employers of more than 25 employees in agricultural occupations start at eight and one-half hours per workday or 45 hours per workweek.
And by January 1, 2022, overtime rules for agricultural workers will finally be the same as those for other employees in the State of California. An agricultural worker will not work more than eight hours per workday or work in excess of 40 hours per workweek unless the employee receives overtime. Full details are in IWC No. 14-2001.
Individuals employed in agriculture and outdoor work such as landscaping and farming are legally entitled to sufficient rest breaks (minimum five minutes in the shade) when temperatures exceed 85 degrees Fahrenheit. This 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 ($14.00 per hour or $13.00 per hour for employers with 25 or fewer employees), your employer may not threaten retaliation such as firing you or reporting you to immigration authorities. An employer who violates the 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 "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 comply with steps to prevent heat illness.
CALIFORNIA MANAGERSAll employees are entitled to overtime unless their employer can establish that they are exempt from overtime under one of four exemptions: managerial, administrative, learned professional, and outside sales.
Managers are generally exempt from overtime compensation under state and federal wage and hour laws. However, it is important to remember that the ABC test determines whether an employee is exempt: it is job duties and not job titles that determine whether or not manager or assistant manager, just like any employee, is exempt from overtime.
To be exempt under the managerial category, an employee's primary job duties must be consistent with those required for managing, including:
Customarily and regularly directing the work of at least 2 or more employees
Customarily and regularly exercising discretionary power
The authority to hire and fire employee
The ability to make comments and suggestions about personnel matters that are given weight by the employer
To be exempt, the employee must spend more than 50 percent of his/her time performing the above-listed duties. For example, if an employee spends only half of his or her time in a managerial role and the other half performing the same duties as those he or she supervises, the employee may lose exempt status.
Additionally, to be considered a manager, an employee must earn a monthly wage equal to at least 2 times the state minimum wage x 40 hours.
California ASSISTANT MANAGERSIf you are an Assistant Manager, Assistant Store Manager, Co-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.
Misclassification of Assistant Managers as exempt instead of non-exempt employees is a common problem throughout almost all types of industries, particularly the retail and restaurant sector. Misclassifying assistant managers is a leading topic of lawsuits seeking to recover unpaid overtime and remedy wage theft.
CALIFORNIA PROPERTY MANAGERSIf 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 COMPUTER SOFTWARE EMPLOYEESEmployees in the computer technology field often work long hours and weekends and are usually paid a salary without premium overtime pay. Under California law, many computer Information Technology (IT), Information Services (IS), and Computer Tech jobs are entitled to awards of overtime pay going back four years.
Many IT, IS, and Computer Tech workers should be getting paid overtime even though they are salaried. If the duties they perform regularly are routine, repetitive, automated, or are not intellectually varied in nature, they may be owed overtime pay. A California law affecting most computer programmers eliminated overtime and set a minimum wage for these workers, but there are still exceptions.
For instance, Test Engineers (TE) and Quality Assurance (QA) Engineers who perform the repetitive and automated tasks common to this job are likely eligible for overtime and many of their overtime lawsuits have succeeded.
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.
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.
As of January 1, 2021, California Labor Code Section 515.5 has adjusted the computer software employee's minimum hourly rate of pay exemption from $46.55 to $47.48, the minimum monthly salary exemption from $8,080.71 to $8,242.32, and the minimum annual salary exemption from $96,968.33 to $98,907.70.
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.
The software professional wage/hour exemption in California does NOT apply to:
- Trainees or entry-level employees still learning to apply highly specialized information in the computer field;
- Employees who have not attained the skill and expertise to work without close supervision;
- Employees who engage in the operation of computers or the manufacture, repair or maintenance of computer hardware;
- Employees who are engineers or drafters who are highly skilled in computer-aided design but not in computer systems analysis, programming, etc.;
- Writers who provide content connected with computers and software; or
- Employees who engage in highly-skilled computer systems analysis or programming for the purpose of creating effects imagery for the movie, TV or theater industry.
CALIFORNIA NURSES OVERTIMERegistered nurses are non-exempt employees--which means overtime rules apply to them–unless they are primarily engaged in executive or administrative tasks and meet the other requirements of the white-collar exemption.
Although there is a professional exemption for overtime wages in California, nurses are not covered by this exemption. California labor law specifically states that “registered nurses employed to engage in the practice of nursing” are not considered exempt professional employees unless they work as an advanced practice nurse (nurse midwives, nurse anesthetists, and nurse practitioners).
In 2021, registered nurses (RNs) in California earn more than in any other state at an average of $102,700, which is $8,560 monthly or $49.37 hourly. This figure can fluctuate based on your city of residence, your employer, and your overall nursing experience.
Travel nurse wage packages vary because in addition to a salary or hourly rate, travel nursing contracts usually provide tax-free stipends, bonuses, and “per diems” for food and housing. Although travel nurses may be employed by a staffing company based in another state, they must be paid in accordance with California laws when they are stationed in the state, including the calculation of overtime wages.
Nursing professionals who are denied overtime wages, meal breaks, and other benefits may be owed these benefits under California labor law.
California SALES EMPLOYEES
The legal issue in many overtime lawsuits filed by sales people is whether an employee is exempt. Commissioned sales people seem to present a particular puzzle to employers. They usually work from their employer’s place of business, do the hard work of cold-calling and following employer-provided leads to sell the employer’s goods or services. They are likely entitled to be paid overtime for hours beyond a 40-hour workweek.
Whether a worker is an inside or an outside salesperson depends on the job duties performed, rather than a particular title. A common mistake many employers make is to treat all commissioned salespeople as exempt employees. Employers are tempted to do so to cut costs, such as overtime and benefits.
Inside salespeople are those who do not leave the office to make sales. These are the workers who typically make sales over the telephone, internet or by mail. They are generally covered by overtime protections.
Outside salespeople regularly work more than one-half the working time away from the employer’s place of business selling items or obtaining orders for products or services.
They have more control over their time and conditions of employment and are usually not entitled to earn overtime. “Outside sales exemption” is the California employment law that says an employer’s “outside salespeople” are exempt from certain employee rights.
The largest category of exempt employees is executive, administrative and professional employees who earn at least twice the California minimum wage (the “white-collar exemption”).
In order to be exempt from wage/hour laws under this category, an employee must:
- Have primary duties that are executive, administrative or professional (this generally means that 50% or more of his/her work time must be devoted to such tasks);
- Regularly and customarily exercise discretion and independent judgment at work; and
- Earn a salary equivalent to at least twice the state minimum wage for full-time (40 hours/week) work.
CALIFORNIA BANK CENTER STAFF (LOCAL KIOSKS)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 CALL CENTER WORKERSA 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.
For instance, Wells Fargo faces a lawsuit that claims call center employees were not paid for time spent working before and after logging into and out of the bank’s phone system. A California federal judge recently gave final approval to a class action unpaid overtime lawsuit filed by former call center workers alleging that their employer forced them to work off the clock before and after their shifts as well as during lunch breaks.
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.
CALIFORNIA OVERTIME LAWYERLeading 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.
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.
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All in a day’s work
Revel sells a cloud-based Point of Sale (POS) system. Restaurants, retail stores and other enterprises throughout the world use it because, in part, it integrates with Apple’s iPad. The POS system tracks sales, inventory and includes payroll and customer relationship management features.
Joseph Bisaccia worked for Revel as a Sales Executive out of Revel’s office in Tempe, Arizona where he cold-called potential buyers. Revel also provided him with leads to follow in an effort to make sales. Revel employs many inside sales representatives to work in a similar capacity.
High pressure sales quotas, no overtime
Between 2014 and 2017, Bisaccia and other sales reps claim that they were pressured to meet ambitious monthly sales goals that could not be achieved within the limits of a 40-hour workweek. He worked, on average, two to six hours of overtime every week. In addition, he and other plaintiffs typically worked overtime hours on weekends, either from Revel’s office or from home, where they took and made calls to potential customers. It was nonstop hustle.
Revel routinely provided meals to inside sales representatives so that they could work through lunch breaks. In addition, the company required inside salespersons to work overtime during the last week of each month in order to meet the company’s sales quotas. For example, during the workweek ending on October 30, 2016, Bisaccia estimated that he worked 55 hours. He was, however, not compensated for any of the overtime hours he worked in that week or in any previous workweek.
Instead, Revel misrepresented to the sales representatives that they were exempt from minimum wage and overtime protections under FLSA. Rather than pay Bisaccia and other inside salespersons one and one-half times their regular hourly rate of pay for all hours worked over 40 in a given workweek, Revel paid only the regular hourly rate. During the period of time in question, the company kept no records of actual hours worked.
Are inside sales employees protected by overtime laws?
As a general principle, the FLSA
The legal issue in many overtime lawsuits is whether a job fits within one of those exceptions. If not, then an employer must comply with the FLSA minimum wage and overtime requirements. Commissioned sales employees seem to present a particular puzzle to employers.
Inside salespeople are those who do not leave the office to make sales. These are the workers who try to make sales over the telephone, internet or by mail. They know the “click” of the dreaded auto dialer. They are generally covered by overtime protections.
Outside salespeople customarily work away from the employer’s place of business. They have more control over their time and conditions of employment and are usually not entitled to earn overtime.
Whether a worker is an inside or an outside salesperson depends on the job duties performed, rather than a particular title. A common mistake many employers make is to treat all commissioned salespeople as exempt employees. It may be a particularly tempting to do so because not having to pay overtime may save an employer on payroll.
Why is the overtime settlement important?
This is not one of those situations that makes new law. Although the determination of whether an employee works in an inside sales capacity or an outside sales capacity can be very fact-specific, the law is not new or unclear. Nonetheless, violations of this provision of the FLSA remain quite common.
Commissioned salespeople who usually work from their employer’s place of business and do the hard work of cold-calling and following employer-provided leads to sell the employer’s goods or services are likely entitled to be paid overtime for hours beyond a 40-hour workweek. The settlement in Bisaccia is a reminder of this basic rule.
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