Los Angeles, CAPamela and Martin have similar jobs: Pamela is a caregiver and Martin is also a caregiver—for dogs. They also have a similar problem regarding California labor law: both work 12-hour shifts and get paid a flat rate below minimum wage.
When Pamela began her caregiver job, she made about $9 per hour for three-hour shifts. Then her employer offered a 'flat rate' to work nights. "I thought the flat rate meant an 8-hour shift and anything more would be overtime," says Pamela. "My supervisor asked if I would work a 12-hour shift and I agreed. It wasn't until I got my first paycheck two weeks later that I found out I was only getting $70 per shift--$5.83 per hour.
'That is ridiculous-- it isn't even minimum wage, you know that is against the law,' I said to my supervisor. 'Well, that's what it is,' she replied. In other words, it wasn't going to change. But she would give me an extra $5—how generous."
On Jan. 1, 2007 the minimum wage jumped from $6.75 to $7.50 per hour, and on Jan. 1, 2008 the minimum wage increases to $8.00 per hour.
"I can't live on that wage," says Pamela. "I arrive at my client's home at 9pm and sleep for a few hours during the night. Around 6am I let the dogs out and walk them around the neighborhood. I start to clean the house, make breakfast and leave at 9am although sometimes I stay longer, until the next caregiver arrives.
"My employer told me this flat rate is justified because I am sleeping on the job.
She has a franchise and I am one out of many caregivers on her payroll—they are also getting paid below minimum wage. Right now I am looking around for another job and definitely won't accept another flat rate."
Martin has been working at a dog kennel for almost three years and usually works a 12-hour nightshift.
"I knew the overnight people worked longer hours than day workers but I never agreed to any amount of a flat rate," says Martin. "I was also offered a commission so I accepted the job—somebody told me it was $1 per dog if at least 20 dogs stay with us. Turns out that was just hearsay.
"When I work normal daytime hours, my hourly rate is $8.50. But when I work nights they only pay $95--$7.91 per hour.
I only knew about the flat rate when I got my first paycheck. My employer justified the flat rate because we are supposed to be sleeping and they say we shouldn't get paid overtime. There is a room with a bed, but it isn't easy with a pack of dogs running around. And we have to be on guard the entire night--that is the point of being there in the first place. The only thing that divides us from the dogs is a little gate.
On one occasion they found out that I tried to sleep with the bedroom door shut so they got on my case about that. It is just about impossible to sleep with the door open.
I haven't spoken to my employer because I might get fired. They will probably think I am threatening them."
According to the California Labor Code, Pamela and Martin must be paid at least minimum wage—sleeping or not.
The Labor Code states that:
A minimum wage must be paid for all hours worked during a payroll period.
An employer can pay their employees on a piece rate basis. This means that the employee is not paid a salary or per time worked, but is paid a set amount for each project that is completed. A common example is auto mechanics that are paid a set amount for a type of repair, regardless of how long it takes them to actually perform the repair. Some employers mistakenly believe that piece rate workers are not exempt from the overtime and minimum wage requirements. Those wage rules, however do apply, and piece rate workers must be appropriately paid.
If you are employed in the State of California and feel that your employer or a co-worker has violated a state or federal employment law, please contact a lawyer involved in a possible [California Labor Laws Lawsuit] who will review your case at no cost or obligation.